IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40847 Conference Calendar

PETER OKECHUKWU AJAEGBU,

Petitioner-Appellant,

versus

JOHN TOMBONE, Warden,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:01-CV-141 -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Peter Ajaegbu (“Ajaegbu”), federal inmate # 24189-077,

appeals the district court’s dismissal of his

petition for lack of jurisdiction. Ajaegbu’s

petition challenged his conviction for conspiracy to import

heroin into the United States. Ajaegbu argues that the

indictment and jury instruction were defective under Apprendi v.

New Jersey,

(2000).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40847 -2-

In order to challenge his conviction under

,

Ajaegbu must show that

provides him with an

inadequate or ineffective remedy. Pack v. Yusuff,

(5th Cir. 2000). Ajaegbu must establish that (1) his claim

is based on a retroactively applicable Supreme Court decision

which establishes that he 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 his

trial, appeal, or first

motion. See

Reyes-Requena v. United States,

(5th Cir. 2001).

This court recently rejected a petitioner’s savings clause

argument based on Apprendi, holding that the petitioner could not

satisfy the first prong of Reyes-Requena because Apprendi is not

retroactive on collateral review. See Wesson v. U.S.

Penitentiary, Beaumont, TX,

(5th Cir. 2002).

Accordingly, the district court’s dismissal of Ajaegbu’s

petition is AFFIRMED.