IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-60248
Summary Calendar
GAVAN ALLAN PAUL,
Petitioner-Appellant,
versus
KHURDID Z. YASUFF; BUREAU OF PRISONS,
Respondents-Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:01-CV-163BrS
March 18, 2003
Before GARWOOD, WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
Gavan Allan Paul, federal prisoner #24976-034, appeals the
dismissal by the United States District Court for the Southern
District of Mississippi of his 28 U.S.C. § 2241 petition filed in
that court in which Paul challenged his conviction and 121 month
sentence imposed by the United States District Court for the
Eastern District of Louisiana for conspiracy to possess with intent
to distribute cocaine. Paul argues only that he is entitled 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opinion should not be published and is not precedent except under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.
relief under Apprendi v. New Jersey, 530 U.S. 466 (2000), and that
the rule of lenity should have been applied to determine the
appropriate sentencing range.
This court has held that Apprendi does not apply retroactively
to cases on collateral review and that an Apprendi claim does not
satisfy the requirements for filing a 28 U.S.C. § 2241 petition
under the “savings clause” of 28 U.S.C. § 2255. See Wesson v. U.S.
Penitentiary, Beaumont, Tx, 305 F.3d 343, 347-48 (5th Cir. 2002).1
Paul’s “rule of lenity” argument is raised for the first time on
appeal and consequently is unreviewable. See Leverette v.
Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). Those
claims that Paul asserted in his 28 U.S.C. § 2241 petition but did
not raise on appeal are waived. See Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993).
Based on the foregoing, the district court’s dismissal of
Paul’s 28 U.S.C. § 2241 petition is
AFFIRMED.
1
We note in passing that Paul’s 121 month sentence does not
exceed the statutory maximum provided for the offense for which he
was indicted and convicted, namely conspiracy to possess with
intent to distribute any quantity of cocaine. 28 U.S.C. §
841(b)(1)(C).
2