IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-41250 Conference Calendar

ELBERT DOUGLAS, JR.,

Petitioner-Appellant,

versus

ERNEST V. CHANDLER, Warden,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:01-CV-540 -------------------- December 11, 2002

Before JOLLY, DAVIS, and JONES, Circuit Judges.

PER CURIAM:*

Elbert Douglas, Jr., federal prisoner # 23814-077, appeals

from the dismissal of his

petition. Douglas

argues that the indictment and sentence in his case violated

Fiore v. White,

(2001), and Apprendi v. New Jersey,

(2000), and that the “savings clause” of

applies to allow him to pursue

relief.

Fiore did not announce a new rule of law; therefore

retroactivity is not at issue, nor does this case establish that

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-41250 -2-

Douglas was convicted of conduct which does not constitute a

crime. Additionally, any claim by Douglas based on Fiore was

not “foreclosed by circuit law at the time when the claim should

have been raised in the petitioner's trial, appeal, or first

[28 U.S.C.] § 2255 motion.” Reyes-Requena v. United States,

(5th Cir. 2001).

Apprendi does not apply retroactively to cases on collateral

review and does not establish that Douglas was convicted of a

nonexistent offense. Wesson v. U.S. Penitentiary,

(5th Cir. 2002). Douglas cannot make a showing sufficient

to invoke the “savings clause” of

to pursue

relief.

AFFIRMED.