IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40792 Summary Calendar

DONALD JACKSON,

Petitioner-Appellant,

versus

ERNEST V. CHANDLER, Warden; UNITED STATES PENITENTIARY BEAUMONT TX,

Respondents-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:01-CV-127 -------------------- December 27, 2001 Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

Donald Jackson appeals from a dismissal of his

petition based on Apprendi** claims. In order to file a

petition pursuant to

's savings

clause, Jackson must demonstrate that 1) his claim is based on a

retroactively applicable Supreme Court decision which establishes

that the petitioner 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 the petitioner’s trial,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. ** Apprendi v. New Jersey,

(2000). No. 01-40792 -2-

appeal, or first

petition. Reyes-Requena v.

United States,

(5th Cir. 2001); see also Jeffers

v. Chandler,

(5th Cir. 2001).

Jackson does not present a prima facie Apprendi claim because the

322-month sentence (262 months for the assault count, plus 60

months for the firearm count) he received does not exceed the 384-

month statutory maximum (300 months for the assault, plus 84 months

for the firearm). United States v. Jackson,

(5th Cir. 1995);

; 924(c). Apprendi thus does not

apply. See United States v. Doggett,

(5th Cir.

2000), cert. denied,

(2001).

Jackson also raises an issue of prosecutorial misconduct. The

appropriate vehicle to address this issue is through a § 2255

petition, not a § 2241 petition. Reyes-Requena v. United States,

(5th Cir. 2001). Accordingly, the district

court’s dismissal of Jackson’s § 2241 is AFFIRMED.