IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40563 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL DEWAYNE ADKISM,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC Nos. 3:00-CV-55 & 3:97-CR-4-1 -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Michael DeWayne Adkism, federal prisoner # 06384-078,

appeals the district court’s denial of his

motion. Adkism was sentenced to 235 months’ imprisonment

following his conviction for conspiracy to possess with intent to

distribute cocaine base, conspiracy to distribute cocaine base,

possession with intent to distribute cocaine base, and

distribution of cocaine base, in violation of

(a)

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40563 -2-

and 846. The district court denied Adkism’s motion and granted a

certificate of appealability on the issue of whether Apprendi v.

New Jersey,

(2000), should apply retroactively with

respect to an initial challenge to a conviction on collateral

review.

The issue is now foreclosed by this court’s decision in

United States v. Brown,

(5th Cir. 2002),

wherein this court held that Apprendi “is not retroactively

applicable to initial petitions under § 2255.” Accordingly, the

district court’s judgment denying Adkism’s

motion is affirmed.

In light of the foregoing, Adkism’s motions for appointment

of counsel and oral argument are denied.

JUDGMENT AFFIRMED; MOTIONS DENIED.