Smith v. Childress, et al

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
October 24, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-41313
Conference Calendar
MELVIN DEWAYNE SMITH,
Petitioner-Appellant,
versus
UP CHILDRESS, Warden,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:05-CV-520
--------------------
Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Melvin DeWayne Smith, federal prisoner # 66584-079, appeals
the district court’s dismissal of his 28 U.S.C. § 2241 petition
challenging his guilty-plea conviction and sentence for engaging
in a continuing criminal enterprise to possess with intent to
distribute controlled substances. Smith’s motion for
supplementation of brief is granted.
Smith argues that his sentence violated his Sixth Amendment
rights as set forth in United States v. Booker, 543 U.S. 220
(2005), because it was enhanced based upon facts not alleged in

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No. 05-41313
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the indictment, mentioned in the plea agreement, admitted by him,
or proven to a jury. The decision in Booker does not apply
retroactively to cases on collateral review, and a Booker claim
does not satisfy the test for filing a § 2241 petition under the
savings clause of 28 U.S.C. § 2255. Padilla v. United States,
416 F.3d 424, 427 (5th Cir. 2005).
For the first time on appeal, Smith argues that his
conviction was improper under Richardson v. United States, 526
U.S. 813 (1999), and that this claim may be brought in a § 2241
petition under the savings clause of § 2255. This newly raised
legal claim is not reviewable for the first time on appeal. See
Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.
1999). Smith raised his Richardson claim in this court in his
appeal from the denial of his previous § 2241 petition. We warn
Smith that filing future repetitive appeals will subject him to
sanctions.
AFFIRMED; MOTION FOR SUPPLEMENTATION OF BRIEF GRANTED;
SANCTION WARNING ISSUED.

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