Zapata-Rosa v. Dobre

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 22, 2002
• Docket: 01-40445
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40445 Conference Calendar

FREDY ZAPATA-ROSA,

Petitioner-Appellant,

versus

JONATHON DOBRE, Warden,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:00-CV-362 -------------------- February 20, 2002

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Fredy Zapata-Rosa, federal prisoner number 56777-079,

appeals from the district court's dismissal of his 28 U.S.C.

§ 2241 petition for a writ of habeas corpus. After a de novo

review, we affirm.

Zapata-Rosa argues that his petition should have been

permitted under 28 U.S.C. § 2241 because 28 U.S.C. § 2255

provides an inadequate or ineffective remedy. He first argues

that his conspiracy conviction was improperly enhanced, and he is

therefore actually innocent of the enhancement, under our

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40445 -2-

decision in United States v. Bellazerius, 24 F.3d 698 (5th Cir.

1994), which was decided after Zapata-Rosa was sentenced. We

have already rejected a similar argument that Bellazerius permits

a 28 U.S.C. § 2241 petition. See Kinder v. Purdy, 222 F.3d 209,

213-14 (5th Cir. 2000), cert. denied, 121 S. Ct. 894 (2001).

Zapata-Rosa also argues that 28 U.S.C. § 2255 is ineffective

because it was not validly enacted into law by Congress. This

argument is frivolous. See Act of June 25, 1948, ch. 646, 62

Stat. 967 (1948). Finally, Zapata-Rosa argues for the first time

under Apprendi v. New Jersey, 530 U.S. 466 (2000), that his

sentence was improper and that 21 U.S.C. § 841 is

unconstitutional. We do not review a new claim raised for the

first time on appeal. See Leverette v. Louisville Ladder Co.,

183 F.3d 339, 342 (5th Cir. 1999), cert. denied, 528 U.S. 1138

(2000).

AFFIRMED.