UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40330
Summary Calendar
JOSE INEZ ZAPATA,
Petitioner-Appellant,
versus
MICHAEL PURDY, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(C-01-CV-120)
October 10, 2002
Before BARKSDALE, DeMOSS and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jose Inez Zapata, federal prisoner # 24881-077, appeals pro se
the denial of his 28 U.S.C. § 2241 petition in which he challenged
his convictions in 1994 for conspiracy to distribute cocaine and
for conspiracy to distribute marijuana. (His motion for
appointment of counsel for this appeal is DENIED.)
For the first time on appeal, Zapata contends: (1) the jury
instructions, which stated that the evidence did not have to
*
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that this opinion should not be published and is not precedent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.
establish that all or any of the overt acts alleged had been
committed, reduced the charges against him; (2) he was entitled to
a lesser included offense instruction; and (3) counsel was
ineffective for failing to raise these same arguments. These newly
raised legal claims are not reviewable for the first time on
appeal. See, e.g., Leverette v. Louisville Ladder Co., 183 F.3d
339, 342 (5th Cir. 1999), cert. denied 528 U.S. 1138 (2000).
Zapata has been previously denied leave to file a successive
§ 2255 petition asserting the district court violated Apprendi v.
New Jersey, 530 U.S. 466 (2000), by failing to instruct the jury to
find drug quantity beyond a reasonable doubt. He contends he can
now bring this claim in a § 2241 petition, via the savings clause
of 28 U.S.C. § 2255.
To trigger § 2255’s savings clause, 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. See Reyes-Requena v. United States, 243 F.3d 893,
904 (5th Cir. 2001). “Apprendi implicates only the validity of the
sentence” and “has no effect on whether the facts of his case would
support [the] conviction for the substantive offense”. Wesson v.
U.S. Penitentiary Beaumont, Tx., ___ F.3d ___ (5th Cir. 5 Sept.
2
2002, No. 01-41000), 2002 WL 31006173 at *4. Therefore, Zapata’s
“Apprendi argument ... does not amount to a claim that he was
convicted of a nonexistent offense as required by the Reyes-Requena
savings clause test”. Id.
AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED
3