Case: 12-30462 Document: 00512009709 Page: 1 Date Filed: 10/04/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 4, 2012
No. 12-30462
Summary Calendar Lyle W. Cayce
Clerk
STEVEN W. ARNOLD,
Petitioner-Appellant
v.
WARDEN ASK-CARLSON,
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:12-CV-45
Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Steven W. Arnold, federal prisoner # 05022-041, appeals from the denial
of his habeas corpus petition pursuant to 28 U.S.C. § 2241. He challenges his
convictions involving cocaine base, for which he is serving a term of 360 months
of imprisonment. The district court determined that Arnold could not pursue
relief under § 2241 because he did not satisfy the requirements of 28 U.S.C.
§ 2255(e).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 12-30462
On appeal, he contends that DePierre v. United States, 131 S. Ct. 2225
(2011), redefined the elements of crack cocaine offenses, barred the use of the
preponderance of the evidence standard to determine drug type and quantity,
and is retroactively applicable. He further argues that inadequate evidence was
presented to prove that the substance in his case was cocaine base.
A federal prisoner may attack the validity of his conviction in a § 2241
petition if he can meet the requirements of § 2255(e)’s savings clause. Kinder v.
Purdy, 222 F.3d 209, 212 (5th Cir. 2000). The prisoner bears the burden of
showing that the remedy under § 2255 would be “inadequate or ineffective to test
the legality of his detention.” § 2255(e); Reyes-Requena v. United States, 243
F.3d 893, 901 (5th Cir. 2001). A petitioner’s inability to meet the procedural
requirements of § 2255 is insufficient to meet this burden. Pack v. Yusuff, 218
F.3d 448, 452-53 (5th Cir. 2000). Rather, a prisoner who wishes to proceed
under the savings clause must establish that his claim “is based on a
retroactively applicable Supreme Court decision which establishes that the
petitioner may have been convicted of a nonexistent offense” and that the claim
“was foreclosed by circuit law at the time when the claim should have been
raised.” Reyes-Requena, 243 F.3d at 904.
In DePierre, 131 S. Ct. at 2237, the Supreme Court held that the term
“cocaine base” in 21 U.S.C. § 841(b)(1) refers to cocaine in its chemically basic
form, which includes, but is not limited to, “crack cocaine.” DePierre did not
decriminalize Arnold’s criminal conduct. Arnold therefore may not pursue
§ 2241 relief on his DePierre claim. See Reyes-Requena, 243 F.3d at 904.
Evidently to bolster his DePierre argument, Arnold argues that Melendez-
Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 131
S. Ct. 2705 (2011), require that the analysts who author lab reports must testify
as to the reports and be subject to cross-examination. He does not argue that
either Melendez-Diaz or Bullcoming was violated in his case as to any reports
and the analysts who authored them. Rather, he argues that those cases
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No. 12-30462
reinforce the requirement in DePierre that the nature of the substance at issue
be proved beyond a reasonable doubt. He raises his argument pursuant to
Melendez-Diaz and Bullcoming for the first time on appeal.
Absent extraordinary circumstances, we will not consider an issue raised
for the first time on appeal in a civil case. Leverette v. Louisville Ladder Co., 183
F.3d 339, 342 (5th Cir. 1999). To the extent Arnold may be attempting to raise
a contention that the holdings in Melendez-Diaz and Bullcoming were somehow
violated in his case, we do not consider the issue. See id. To the extent Arnold
seeks to reinforce his DePierre argument by citing to Melendez-Diaz and
Bullcoming, those cases do not change the fact that DePierre did not
decriminalize Arnold’s conduct.
AFFIRMED.
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