                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 20, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 03-40254
                        Conference Calendar



MANLEY CARGILL,

                                    Petitioner-Appellant,

versus

MARVIN D. MORRISON,

                                    Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 1:02-CV-794
                       --------------------

Before JONES, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Manley Cargill, federal prisoner # 41436-004, appeals the

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

which he challenged his convictions for a continuing criminal

enterprise and drug conspiracies pursuant to Rutledge v. United

States, 517 U.S. 292 (1996).   Cargill cannot establish that he

meets the standard for filing a 28 U.S.C. § 2241 petition under

the “savings clause” of 28 U.S.C. § 2255 because Rutledge was

available at the time Cargill filed his first 28 U.S.C. § 2255

     *
        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that this opinion should not be published and is not precedent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. 03-40254
                                 -2-

motion.   See Reyes-Requena v. United States, 243 F.3d 893, 904

(5th Cir. 2001).    Cargill is incorrect in his assertion that

Rutledge was unavailable at the time he filed his first 28 U.S.C.

§ 2255 motion because such a claim would have been untimely.      See

28 U.S.C. § 2255 ¶ 6; United States v. Flores, 135 F.3d 1000,

1005-06 (5th Cir. 1998).    The “savings clause” does not violate

the Suspension Clause of the Constitution.    Reyes-Requena, 243

F.3d at 901 n.19.    Consequently, the judgment of the district

court is AFFIRMED.
