United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 17, 2004
Charles R. Fulbruge III
Clerk
No. 03-40935
Conference Calendar
DEREK GLEN ADKINS,
Petitioner-Appellant,
versus
N. L. CONNOR, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:01-CV-213
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Derek Glen Adkins, federal prisoner # 24400-077, appeals the
district court’s dismissal of his petition for a writ of habeas
corpus under 28 U.S.C. § 2241. Because Adkins’ 28 U.S.C. § 2241
petition challenged the validity of his conviction and sentence,
Adkins had to show that 28 U.S.C. § 2255 provided him with an
inadequate or ineffective remedy. Tolliver v. Dobre, 211 F.3d
876, 878 (5th Cir. 2000). “[T]he savings clause of [28 U.S.C.]
*
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that this opinion should not be published and is not precedent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. 03-40935
-2-
§ 2255 applies to a claim (i) that is based on a retroactively
applicable Supreme Court decision which establishes that the
petitioner may have been convicted of a nonexistent offense and
(ii) that was 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.” Reyes-Requena v. United
States, 243 F.3d 893, 904 (5th Cir. 2001).
Adkins argues that the indictment was defective and in
violation of the fair warning, Accardi v. Shaughnessy,** and no
evidence doctrines because it failed to allege all elements of
the offenses charged. Thus, he pleaded guilty to non-existent
offenses and was actually innocent.
Adkins’ claims are not based on a retroactively applicable
Supreme Court decision which establishes that he may have been
convicted of a nonexistent offense. See Reyes-Requena, 243 F.3d
at 904. To the extent that his claims are based upon the Supreme
Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000),
Apprendi does not apply retroactively to cases on collateral
review and an Apprendi claim does not satisfy the test for filing
a 28 U.S.C. § 2241 petition under the savings clause. See Wesson
v. U.S. Penitentiary, Beaumont, TX, 305 F.3d 343, 347-48 (5th
Cir. 2002). Accordingly, Adkins fails to qualify for relief
under 28 U.S.C. § 2255's savings clause provisions. The district
court’s dismissal of Adkins’ 28 U.S.C. § 2241 petition is
**
347 U.S. 260 (1954).
No. 03-40935
-3-
therefore AFFIRMED. Adkins’ motion for leave to file a reply
brief out of time is DENIED.
AFFIRMED; MOTION DENIED.