Martinez v. Pratt

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 4, 2002
• Docket: 02-10469
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-10469 Conference Calendar

OZIEL GONZALEZ MARTINEZ,

Petitioner-Appellant,

versus

SAM PRATT, Warden,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:02-CV-91-R -------------------- October 30, 2002

Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Ozeil Gonzalez Martinez, federal prisoner # 75159-9000, was

convicted in 1993 of conspiracy to import at least one kilogram

of heroin, conspiracy to possess with intent to distribute at

least one kilogram of heroin, and several counts of possession

with intent to distribute heroin. He appeals the district

court’s denial of his 28 U.S.C. § 2241 petition, wherein he

argued that his sentence of concurrent terms of 210 months’

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-10469 -2-

imprisonment for each count was in violation of Apprendi v. New

Jersey, 530 U.S. 466 (2000), because his sentences were based

upon six kilograms of heroin.

The district court determined that Martinez had not met the

requirements of 28 U.S.C. § 2255's savings clause and that

Martinez could not raise his claim in a 28 U.S.C. § 2241

petition. His sentences were below the lowest statutory maximum

for his convictions. See 21 U.S.C. § 841(b)(1)(C). There was no

Apprendi violation. See United States v. Clinton, 256 F.3d 311,

314 (5th Cir.), cert denied, 122 S. Ct. 492 (2001); United States

v. Doggett, 230 F.3d 160, 166 (5th Cir. 2000), cert. denied, 531

U.S. 1177 (2001). Further, the district court’s determination

that Apprendi does not apply retroactively to cases on collateral

review and that an Apprendi claim does not satisfy the

requirements of 28 U.S.C. § 2255's savings clause was correct.

See Wesson v. U.S. Penitentiary, Beaumont, TX, 305 F.3d 343 (5th

Cir. 2002).

AFFIRMED.