IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-41267 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FIDEL VALENCIA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-1-CV-116 USDC No. B-93-CR-132-1 -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Fidel Valencia (federal prisoner # 63091-079) filed a

petition wherein he sought to challenge his 1994

conviction for possession with the intent to distribute

marijuana. Valencia argued that his conviction and sentence were

unconstitutional under Apprendi v. New Jersey,

(2000). The district court construed Valencia’s

petition as a motion under

and dismissed the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-41267 -2-

petition as untimely. The court subsequently determined that

although it had properly characterized Valencia’s

petition as arising under

, the petition

was not time-barred. Because he is a federal prisoner proceeding

under

, Valencia does not need a COA to appeal.

See Wesson v. U.S. Penitentiary Beaumont, Tx.,

(5th Cir. 2002).

Under the “savings clause” of

, if the

petitioner can show that

provides him with an

inadequate or ineffective remedy, he may proceed by way of

. Pack v. Yusuff,

(5th Cir.

2000). To do so, the petitioner must show that (1) his claims

are based on a retroactively applicable Supreme Court decision

which establishes that he may have been convicted of a

nonexistent offense, and (2) his claims were foreclosed by

circuit law at the time when the claims should have been raised

in his trial, appeal, or first

motion. See

Reyes-Requena v. United States,

(5th Cir.

2001).

This court has recently decided that an Apprendi claim does

not satisfy the savings clause test set forth above because

Apprendi is not retroactively applicable to cases on collateral

review and because an Apprendi violation does not show that a

petitioner was convicted of a nonexistent offense. Wesson, 305 No. 01-41267 -3-

F.3d at 347-48. The district court thus did not err in

determining that Valencia was not entitled to proceed under

. Valencia’s remaining arguments are patently

frivolous. The judgment of the district court is AFFIRMED.

AFFIRMED.