IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40413 Summary Calendar

JESUS D. LUJAN,

Petitioner-Appellant,

versus

N. L. CONNER, Warden,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 5:00-CV-349 -------------------- November 5, 2002

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

Jesus Daniel Lujan, federal prisoner #60851-080, appeals the

district court’s dismissal of his

petition for

lack of jurisdiction and moves for bond pending appeal. Lujan’s

petition challenged his conviction for conspiracy to

possess with intent to distribute marijuana and cocaine in

violation of

(a)(1), 846. He argues that his

conviction and sentence are unconstitutional because the quantity

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40413 -2-

of drugs he possessed is an element of the offense and therefore

should have been charged in the indictment and proven beyond a

reasonable doubt consistent with the Supreme Court’s decision in

Apprendi v. New Jersey,

(2000).

Lujan acknowledges that a

motion is the

primary means of collateral challenge of a federal sentence

alleging errors “at or prior to sentencing.” Pack v. Yusuff,

(5th Cir. 2000). He argues however that he should be

able to proceed under § 2241 based on the “savings clause” of

§ 2255.

To proceed under this clause petitioner must show that his

claim is (i) based on a retroactively applicable Supreme Court

decision which establishes that the petitioner may have been

convicted of a non-existent offense, and (ii) that the claim was

foreclosed by circuit law at the time it should have been raised in

petitioner’s trial, appeal or first § 2255 motion. Reyes-Requena

v. United States,

(5th Cir. 2001). However, we

have held that Apprendi is not retroactively applicable, In re

Tatum,

(5th Cir. 2000), causing petitioner’s

“savings clause” claim to fail.

Accordingly, the district court was correct to treat Lujan’s

petition as a successive § 2255 motion. For this

claim to be cognizable in a successive § 2255 motion Lujan must

show that his claim relies on a new rule of constitutional law that

was previously unavailable. Reyes-Requena v. United States, 243 No. 02-40413 -3-

F.3d at 896. Further, because his conviction was final before the

Court’s decision in Apprendi, that decision must be retroactively

applicable on collateral review for the district court to have

jurisdiction to hear this claim. Id. As we have held that

Apprendi is not retroactively applicable, the district court lacks

jurisdiction to hear Lujan’s successive § 2255 motion.

The district court’s dismissal of Lujan’s petition for lack of

jurisdiction is AFFIRMED, and Lujan’s motion for bond pending

appeal is DENIED.

AFFIRMED; MOTION DENIED.