Polley v. Fleming

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 29, 2002
• Docket: 02-10052
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-10052 Summary Calendar

WILLIE JAMES POLLEY,

Petitioner-Appellant,

versus

L. E. FLEMING, Warden,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:01-CV-521-Y -------------------- May 28, 2002

Before REAVLEY, HIGGINBOTHAM and WIENER, Circuit Judges.

PER CURIAM:*

Willie James Polley, federal prisoner # 05805-078, appeals

the district court’s dismissal of his 28 U.S.C. § 2241 petition,

in which he argued that his sentence was in violation of Apprendi

v. New Jersey, 530 U.S. 466 (2000), a claim this court had

previously denied Polley permission to raise in a second 28

U.S.C. § 2255 motion. Polley argues that the holding in Apprendi

applies retroactively to his case and rendered the federal 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-10052 -2-

laws unconstitutional. He also argues that there was a double

jeopardy violation when a state guilty-plea drug conviction was

used to convict him of his federal conspiracy to possess with

intent to distribute cocaine base conviction.

Polley was sentenced to 240 months’ imprisonment, which is

not above the maximum statutory range for an offense involving

cocaine base. See 21 U.S.C. § 841(b)(1)(C). His sentence of

imprisonment was thus not in violation of Apprendi. 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). His

argument that Apprendi rendered the federal drug statutes

unconstitutional is without merit. See United States v.

Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), cert. denied, 532

U.S. 1045 (2001). Polley has not shown why his double-jeopardy

argument could not have been raised in his prior 28 U.S.C. § 2255

motion, and he has not demonstrated that he may raise that claim

in a 28 U.S.C. § 2241 petition.

The district court’s dismissal of Polley’s 28 U.S.C. § 2241

petition is AFFIRMED.