UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40330 Summary Calendar

JOSE INEZ ZAPATA,

Petitioner-Appellant,

versus

MICHAEL PURDY, Warden,

Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Texas (C-01-CV-120)

October 10, 2002

Before BARKSDALE, DeMOSS and BENAVIDES, Circuit Judges.

PER CURIAM:*

Jose Inez Zapata, federal prisoner # 24881-077, appeals pro se

the denial of his

petition in which he challenged

his convictions in 1994 for conspiracy to distribute cocaine and

for conspiracy to distribute marijuana. (His motion for

appointment of counsel for this appeal is DENIED.)

For the first time on appeal, Zapata contends: (1) the jury

instructions, which stated that the evidence did not have to

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. establish that all or any of the overt acts alleged had been

committed, reduced the charges against him; (2) he was entitled to

a lesser included offense instruction; and (3) counsel was

ineffective for failing to raise these same arguments. These newly

raised legal claims are not reviewable for the first time on

appeal. See, e.g., Leverette v. Louisville Ladder Co.,

(5th Cir. 1999), cert. denied

(2000).

Zapata has been previously denied leave to file a successive

§ 2255 petition asserting the district court violated Apprendi v.

New Jersey,

(2000), by failing to instruct the jury to

find drug quantity beyond a reasonable doubt. He contends he can

now bring this claim in a § 2241 petition, via the savings clause

of

.

To trigger § 2255’s savings clause, a habeas petitioner’s

claim: (1) must be based on a retroactively applicable Supreme

Court decision which establishes that the petitioner may have been

convicted of a nonexistent offense; and (2) must have been

foreclosed by circuit law at the time when the claim should have

been raised in the petitioner’s trial, appeal, or first

motion. See Reyes-Requena v. United States,

(5th Cir. 2001). “Apprendi implicates only the validity of the

sentence” and “has no effect on whether the facts of his case would

support [the] conviction for the substantive offense”. Wesson v.

U.S. Penitentiary Beaumont, Tx., ___ F.3d ___ (5th Cir. 5 Sept.

2 2002, No. 01-41000),

. Therefore, Zapata’s

“Apprendi argument ... does not amount to a claim that he was

convicted of a nonexistent offense as required by the Reyes-Requena

savings clause test”.

AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED

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