IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-41119 Conference Calendar

TERRYONTO MCGRIER,

Petitioner-Appellant,

versus

ERNEST CHANDLER, Warden,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:01-CV-427 -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Terryonto McGrier, federal prisoner #02469-087, appeals the

district court's dismissal of his

petition, in

which he challenged his 1995 conviction for conspiracy to

distribute cocaine base and heroin. He argues that he should be

allowed to bring a

petition under the savings

clause of

. McGrier asserts that his conviction

violated Apprendi v. New Jersey,

(2000), because his

indictment did not contain, and the jury was not instructed to

find, a drug 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-41119 -2-

"[T]he savings clause of § 2255 applies to a claim (i) that

is based on a retroactively applicable Supreme Court decision

which establishes that the petitioner may have been convicted of

a nonexistent offense and (ii) that was foreclosed by circuit law

at the time when the claim should have been raised in the

petitioner's trial, appeal, or first § 2255 motion." Reyes-

Requena v. United States,

(5th Cir. 2001).

This court has 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 McGrier's

petition is AFFIRMED.