IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-10961 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES WILLIE DUKE,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:93-CR-28-2-D -------------------- February 26, 2002

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

James Willie Duke, federal prisoner # 24193-077, appeals the

dismissal of his “Petition for Writ of Habeas Corpus or Coram

Nobis Alternative Extraordinary Writs pursuant to the All Writs

Act.” Duke argues that he may challenge his conviction through

the All Writs Act,

, and the savings clause of

. Duke’s motion to file a reply brief out of

time is GRANTED.

Because Duke is collaterally attacking the legality of his

conviction and sentence, the controlling statute is 28 U.S.C.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-10961 -2-

§ 2255. See Reyes-Requena v. United States,

(5th Cir. 2001). Duke has not shown that the

remedy is inadequate or ineffective because neither a prior

unsuccessful motion nor the inability to meet the requirement for

bringing a successive motion makes

inadequate or

ineffective. Tolliver v. Dobre,

(5th Cir.

2000).

Duke’s argument that his petition may be heard under the

savings clause of

based on Jones v. United

States,

(1999), and Apprendi v. New Jersey,

(2000), also fails. Even if Jones and Apprendi could be

applied retroactively, Duke’s indictment was not defective within

the meaning of Jones, and he has demonstrated no Apprendi

violation. See Jones,

; Apprendi,

. The judgment of the district court is AFFIRMED.

MOTION GRANTED. AFFIRMED.