IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50182
Conference Calendar
DANNY CARROLL STEPHENS,
Petitioner-Appellant,
versus
TROY WILLIAMSON; THE DISTRICT OF TEXAS
EL PASO DIVISION,
Respondents-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-01-CV-141-DB
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December 12, 2002
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Danny Carroll Stephens, federal prisoner #61583-080, appeals
the district court’s dismissal of his 28 U.S.C. § 2241 petition
for lack of jurisdiction. Stephens 28 U.S.C. § 2241 petition
challenged his conviction for possession with intent to
distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1).
Stephens’s 28 U.S.C. § 2241 petition argued that his
indictment was defective under Apprendi v. New Jersey, 530 U.S.
*
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that this opinion should not be published and is not precedent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. 02-50182
-2-
466 (2000), and that he should be able to bring his Apprendi
claim under the “savings clause” of 28 U.S.C. § 2255. To proceed
under the savings clause of 28 U.S.C. § 2255, Stephens must show
that (1) his claim is based on a retroactively applicable Supreme
Court decision which establishes that he may have been convicted
of a nonexistent offense, and (2) his claim was foreclosed by
circuit law at the time when the claim should have been raised in
his trial, appeal, or first 28 U.S.C. § 2255 motion. See Reyes-
Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
We recently decided that an Apprendi claim does not satisfy
the savings clause test set out by Reyes-Requena. See Wesson v.
U.S. Penitentiary Beaumont, TX, F.3d , 2002 WL 31006173 at
**3-4 (5th Cir. Sept. 5, 2002, No. 01-41000). Specifically, we
held that Apprendi is not retroactively applicable to cases on
collateral review and that an Apprendi violation does not show
that a petitioner was convicted of a nonexistent offense. Id.
Accordingly, the district court’s dismissal of Stephens’ 28
U.S.C. § 2241 petition is AFFIRMED.