IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50555 Conference Calendar

JUAN ERNESTO CASTRO-CUELLAR,

Petitioner-Appellant,

versus

R. D. MILES, Warden,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-00-CV-703-SS -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Juan Ernesto Castro-Cuellar, federal prisoner # 44214-080,

appeals the district court’s dismissal of his

petition in which he challenged his 1992 convictions for various

drug-related offenses stemming from his involvement in a large

marijuana importation ring. He has also moved for appointment of

counsel on appeal. That motion is DENIED.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50555 -2-

Castro argues that the district court erred in determining

that he had not demonstrated that relief under

was inadequate or ineffective so as to qualify for relief under

. He contends that his reliance on Apprendi v.

New Jersey,

(2000), qualifies him for such relief

under the “savings clause” of

as established by

Reyes-Requena v. United States,

(5th Cir.

2001).

Castro is incorrect. He does not satisfy the first prong of

the Reyes-Requena test because Apprendi is not retroactive to

cases on collateral review. See Wesson v. U.S. Penitentiary

Beaumont, Tx.,

(5th Cir. 2002).

Castro has not argued on appeal any of the other issues he

raised in his

petition; thus those claims are

waived. See Yohey v. Collins,

(5th Cir.

1993). Castro does argue, for the first time on appeal, that

hearsay evidence was improperly used to convict him of using a

minor child in connection with his drug offense. This newly

raised issue is not reviewable for the first time on appeal. See

Leverette v. Louisville Ladder Co.,

(5th Cir.

1999).

MOTION FOR APPOINTMENT OF COUNSEL DENIED; AFFIRMED.