United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 4, 2003
Charles R. Fulbruge III
Clerk
No. 02-41052
Summary Calendar
KELVIN LOVE
Petitioner - Appellant
v.
MICHAEL A 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-322
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Before KING, Chief Judge, and DeMOSS and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Kelvin Love, federal prisoner # 09677-035, appeals the
dismissal of his 28 U.S.C. § 2241 petition challenging his guilty
plea conviction for possession of cocaine base and cocaine
hydrochloride with intent to distribute. Relying upon Apprendi
v. New Jersey, 530 U.S. 466 (2000) and Rule 11 of the Federal
Rules of Criminal Procedure, Love argues that his guilty plea was
not knowing and voluntary because he was not told that drug
*
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that this opinion should not be published and is not precedent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. 02-41052
-2-
quantity was an element of the charge against him and because he
was not informed of the rights he was waiving until immediately
after he pleaded guilty. He contends that his claims may be
brought in a 28 U.S.C. § 2241 petition because Apprendi was not
decided until after his conviction was final and because the
district court did not rule on his Rule 11 claim in his 28 U.S.C.
§ 2255 motion.
Love’s claims may not be brought under 28 U.S.C. § 2241
because they are not based upon a retroactively applicable
Supreme Court case that establishes that he may have been
convicted of a nonexistent offense and because his claims were
not foreclosed by circuit law at the time of his trial.
See Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir.
2001). Apprendi claims do not satisfy the test for filing a 28
U.S.C. § 2241 petition under the savings clause of 28 U.S.C.
§ 2255. Wesson v. U.S. Penitentiary Beaumont, TX, 305 F.3d 343,
347-48 (5th Cir. 2002). The failure to follow the formal
requirements of Rule 11 of the Federal Rules of Criminal
Procedure is also insufficient to invoke habeas relief. United
States v. Timmreck, 441 U.S. 780, 785 (1979). The district
court’s dismissal of Love’s 28 U.S.C. § 2241 petition is,
therefore, affirmed.
AFFIRMED.