IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41119
Conference Calendar
TERRYONTO MCGRIER,
Petitioner-Appellant,
versus
ERNEST CHANDLER, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:01-CV-427
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December 12, 2002
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Terryonto McGrier, federal prisoner #02469-087, appeals the
district court's dismissal of his 28 U.S.C. § 2241 petition, in
which he challenged his 1995 conviction for conspiracy to
distribute cocaine base and heroin. He argues that he should be
allowed to bring a 28 U.S.C. § 2241 petition under the savings
clause of 28 U.S.C. § 2255. McGrier asserts that his conviction
violated Apprendi v. New Jersey, 530 U.S. 466 (2000), because his
indictment did not contain, and the jury was not instructed to
find, a drug quantity.
*
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that this opinion should not be published and is not precedent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. 01-41119
-2-
"[T]he savings clause of § 2255 applies to a claim (i) that
is based on a retroactively applicable Supreme Court decision
which establishes that the petitioner may have been convicted of
a nonexistent offense and (ii) that was foreclosed by circuit law
at the time when the claim should have been raised in the
petitioner's trial, appeal, or first § 2255 motion." Reyes-
Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
This court has recently rejected a petitioner's savings clause
argument based on Apprendi, holding that the petitioner could not
satisfy the first prong of Reyes-Requena because Apprendi is not
retroactive on collateral review. See Wesson v. U.S.
Penitentiary, Beaumont, TX, 305 F.3d 343, 347-48 (5th Cir. 2002).
Accordingly, the district court's dismissal of McGrier's
petition is AFFIRMED.