* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-40640

Summary Calendar

 

RICKY EDWARD LEVI,

Petitioner-Appellant,

versus

ERNEST CHANDLER, Warden,

Respondent-Appellee.

--------------------

Appeal from the United States District Court

for the Eastern District of Texas

(1:02-CV-129)

--------------------

September 30, 2002

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges. 

PER CURIAM:*

Petitioner-Appellant Ricky Edward Levi, federal prisoner

number 60807-080, appeals from the district court's denial of his

28 U.S.C. § 2241 habeas petition, in which he sought to challenge

his convictions for (1) conspiracy to possess with intent to

distribute and to distribute cocaine, and (2) money laundering.

Levi's petition followed an unsuccessful 28 U.S.C. § 2255 motion

and the denial of a request to file a successive 28 U.S.C. § 2255
2

motion. The district court concluded that Levi's petition was not

authorized under 28 U.S.C. § 2255's "savings clause."

Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000), Levi

argues that he is entitled to relief because (1) his indictment did

not allege drug quantity as a material element of the offense, and

(2) the district court did not instruct the jury to find a drug

quantity. He asserts that the testimony of one witness linking him

to specific drug quantities lacked credibility and was perjurious.

To trigger the savings clause of 28 U.S.C. § 2255, 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 § 2255

motion." Reyes-Requena v. United States, 243 F.3d 893, 904 (5th

Cir. 2001). Regardless of the retroactivity of Apprendi, Levi is

not entitled to relief under 28 U.S.C. § 2241 because the record

reflects that he was part of a conspiracy involving a sufficient

quantity to support a conviction and sentence under 21 U.S.C. §

841(b)(1)(A). See United States v. Cotton, 122 S. Ct. 1781,

1785-86 (2002). 

Citing a Sixth Circuit case, Levi argues that the threshold of

21 U.S.C. § 841(b)(1)(A) was not triggered because his presentence

report indicated that he distributed less than 50 grams on several

occasions and that the amounts should not have been aggregated. In
3

addition to being raised for the first time on appeal, which bars

consideration of this argument, see Leverette v. Louisville Ladder

Co., 183 F.3d 339, 342 (5th Cir. 1999), Levi's contention is not

based on a retroactive Supreme Court decision that was unavailable

when he filed his direct appeal or his first 28 U.S.C. § 2255

motion. Reyes-Requena, 243 F.3d at 904. Therefore, relief under

28 U.S.C. § 2241 is not available. 

Finally, Levi argues, again for the first time on appeal, that

he was actually innocent of the money laundering offense because

(1) the district court erred in its jury charge, (2) defense

counsel was ineffective for failing to investigate the facts

concerning the offense, and (3) the government withheld material

favorable to the defense in violation of Brady v. Maryland, 373

U.S. 83 (1963). As noted above, we do not review new legal claims

raised for the first time on appeal. 

AFFIRMED.

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