IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40610
Summary Calendar
MANLEY CARGILL,
Petitioner-Appellant,
versus
JONATHON DOBRE, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:01-CV-18
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October 1, 2002
Before JOLLY, JONES and PARKER, Circuit Judges.
PER CURIAM:*
Manley Cargill, federal prisoner # 41436-004, appeals from
the dismissal of his 28 U.S.C. § 2241 petition challenging his
1990 convictions and sentences for, inter alia, a continuing
criminal enterprise ("CCE"), conspiracies to import marijuana and
cocaine, and distribution of marijuana. Cargill's petition
followed an unsuccessful 28 U.S.C. § 2255 motion and a request to
file a successive 28 U.S.C. § 2255 motion. The district court
*
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that this opinion should not be published and is not precedent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. 02-40610
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determined that Cargill's petition was not authorized under the
"savings clause" of 28 U.S.C. § 2255.
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 § 2255 motion." Reyes-Requena v. United States,
243 F.3d 893, 904 (5th Cir. 2001). Cargill argues under Rutledge
v. United States, 517 U.S. 292 (1996), that his sentences for CCE
and conspiracy must be set aside because the conspiracy offenses
were improperly used as the predicate offenses for the CCE
offense. The court need not address the merits of Cargill's
claim because, as Rutledge was decided in 1996, Cargill has not
shown that his argument was foreclosed at the time he filed his
first 28 U.S.C. § 2255 motion in 1997. See Reyes-Requena, 243
F.3d at 904.
Relying on Richardson v. United States, 526 U.S. 813 (1999),
Cargill also argues that the district court failed to instruct
the jury that, to find him guilty of the CCE offense, it must
unanimously agree on which three acts constituted the series of
violations making up the continuing criminal enterprise. This
argument does not amount to a claim that Cargill was convicted of
conduct that did not constitute a crime, and Cargill has failed
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to satisfy the first prong of the savings clause test. See
Jeffers v. Chandler, 253 F.3d 827, 830-31 (5th Cir. 2001).
Cargill has not briefed his claim raised in the district
court that the jury was not instructed to find drug quantity as
an essential element of the offenses in violation of Apprendi v.
New Jersey, 530 U.S. 466 (2000). Accordingly, that claim is
deemed abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993).
AFFIRMED.