IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40170
Conference Calendar
RICHARD M. ANCIRA,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:01-CV-294
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August 20, 2002
Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.
PER CURIAM:*
Richard M. Ancira, federal prisoner # 52912-080, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition. The
district court found that Ancira had not satisfied the
requirements of the “savings clause” of 28 U.S.C. § 2255, which
would allow him to raise his claims in a 28 U.S.C. § 2241
petition.
*
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that this opinion should not be published and is not precedent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. 02-40170
-2-
Under the savings clause, if the petitioner can show that
28 U.S.C. § 2255 provides him with an inadequate or ineffective
remedy, he may proceed by way of 28 U.S.C. § 2241. See Pack v.
Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). A petitioner must
show that (1) his claims are based on a retroactively applicable
Supreme Court decision that establishes that the petitioner may
have been convicted of a nonexistent offense, and (2) his claims
were foreclosed by circuit law at the time when the claims should
have been raised in his trial, appeal, or first 28 U.S.C. § 2255
motion. See Reyes-Requena v. United States, 243 F.3d 893, 904
(5th Cir. 2001). The burden of coming forward with evidence to
show the inadequacy of a 28 U.S.C. § 2255 motion “rests squarely
on the petitioner.” Jeffers v. Chandler, 253 F.3d 827, 830 (5th
Cir. 2001).
On appeal, Ancira argues that the increase in his sentence
based on his prior convictions violates Apprendi v. New Jersey,
530 U.S. 460 (2000). His argument fails. First, in Kinder v.
Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000), cert. denied, 531
U.S. 1132 (2001), this court held that a claim of actual
innocence of a career-offender enhancement is not properly raised
in a 28 U.S.C. § 2241 petition because the petitioner is not
claiming actual innocence of the crime of conviction, only of the
enhancement. Second, Apprendi specifically excepted prior
convictions as elements of the offense. See Apprendi, 530 U.S.
at 490. Third, there is no Apprendi violation even if Apprendi
No. 02-40170
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applied, because Ancira was sentenced below the statutory maximum
of imprisonment. See 21 U.S.C. § 841(b)(1)(B)(i). Accordingly,
the dismissal of his 28 U.S.C. § 2241 petition is AFFIRMED.