IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40215
Summary Calendar
RAY CHARLES FIELDS,
Petitioner-Appellant,
versus
MICHAEL PURDY, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-01-CV-74
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July 17, 2002
Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
Ray Charles Fields, a federal prisoner (# 24508-077),
appeals from the district court’s order dismissing his 28 U.S.C.
§ 2241 habeas petition, in which he sought to challenge his 1995
convictions and sentences for a continuing criminal enterprise
(“CCE”) and other counts associated with a drug-trafficking
enterprise. The district court concluded that Fields’ 28 U.S.C.
§ 2241 petition, which followed two unsuccessful 28 U.S.C. § 2255
motions to vacate, was not authorized under the “savings clause”
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-40215
-2-
of the latter statute. Fields argues that he is entitled to
bring two claims under the savings provision: (1) he is
“actually innocent” of the CCE count, because under an
intervening Supreme Court decision, Richardson v. United States,
526 U.S. 813 (1999), the CCE count failed to charge that he
committed three specific CCE violations and the district court
failed to charge the jury accordingly; and (2) his sentences for
two counts of possession of cocaine with intent to distribute
were invalid under Apprendi v. New Jersey, 530 U.S. 466 (2000),
in that the district failed to instruct the jury on the essential
element of drug quantity.
To trigger the savings clause of 28 U.S.C. § 2255, a habeas
petitioner’s claim (1) must be “based on a retroactively
applicable Supreme Court decision which establishes that the
petitioner may have been convicted of a nonexistent offense” and
(2) must have been “foreclosed by circuit law at the time when
the claim should have been raised in the petitioner’s trial,
appeal, or first [28 U.S.C.] § 2255 motion.” Reyes-Requena v.
United States, 243 F.3d 893, 904 (5th Cir. 2001). Because
Fields’ argument as to the CCE count does not amount to a claim
that he was convicted of conduct that did not constitute a crime,
he has failed to satisfy the first prong of the savings clause
test. See Jeffers v. Chandler, 253 F.3d 827, 830-31 (5th Cir.
2001), cert. denied, 423 U.S. 1066 (2001). As to his claim that
the district court failed to instruct the jury on drug quantity,
Fields is not entitled to relief, regardless of the retroactivity
of Apprendi, because the record reflects that Fields’ drug-
No. 02-40215
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trafficking organization distributed more than 1,000 kilograms of
cocaine. See United States v. Cotton, 122 S. Ct. 1781, 1785-86
(2002).
The district court’s judgment dismissing Fields’ habeas
corpus petition is AFFIRMED.