United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS September 18, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10560
Summary Calendar
MELVIN TRAYLOR,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CV-422-R
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Before SMITH, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM:1
Melvin Traylor, federal prisoner # 29612-077, appeals the
district court’s denial of his petition invoking 28 U.S.C. § 2241.
Because Traylor’s 28 U.S.C. § 2241 petition challenged the legality
of his sentence, Traylor had to show that 28 U.S.C. § 2255 provided
him with an inadequate or ineffective remedy. Pack v. Yusuff, 218
F.3d 448, 452 (5th Cir. 2000). “[T]he savings clause of [28
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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that this opinion should not be published and is not precedent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.
U.S.C.] § 2255 applies to a claim (i) that is based on a
retroactively applicable Supreme Court decision which established
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 [28 U.S.C.] § 2255 motion." Reyes-Requena v.
United States, 243 F.3d 893, 904 (5th Cir. 2001).
Traylor argues that his sentence for his drug-conspiracy
conviction is invalid under Apprendi v. New Jersey, 530 U.S. 466
(2000). Contrary to Traylor’s assertion, Apprendi is
not retroactively applicable to cases on collateral review.
See United States v. Brown, 305 F.3d 304, 310 (5th Cir. 2002),
cert. denied, 123 S. Ct. 1919 (2003). Even if it were, it does not
establish that Traylor was convicted of a nonexistent offense.
Reyes-Requena, 243 F.3d at 904. Accordingly, Traylor fails to
qualify for relief under 28 U.S.C. § 2255's savings clause
provisions. The district court’s dismissal of Traylor’s 28 U.S.C.
§ 2241 petition is therefore AFFIRMED.
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