IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-41023 Summary Calendar

LARRY J. CULLUM,

Petitioner-Appellant,

versus

JONATHON DOBRE, Warden,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:02-CV-338 -------------------- December 16, 2002

Before JONES, STEWART, and DENNIS, Circuit Judge

PER CURIAM:*

Larry J. Cullum (Cullum), federal prisoner # 48858-080,

appeals the district court’s dismissal of his

habeas corpus petition challenging his jury-trial conviction for

conspiracy to distribute methamphetamine, manufacturing

phenylacetone, and filing false tax returns. In his petition, he

averred that he is actually innocent of the offense of conviction

and that the prosecutor manufactured and falsified evidence in an

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-41023 -2-

effort to obtain his conviction. Cullum, relying on Apprendi v.

New Jersey,

(2000), also contended that the

indictment was defective because it failed to allege a drug

amount and the jury instructions were defective because they did

not require the jury to determine the quantity of drugs. Lastly,

he averred that his sentence was so excessive as to constitute

cruel and unusual punishment.

Cullum has not established that he is entitled to present

his claims under

because he has not demonstrated

that any of his claims are “based on a retroactively applicable

Supreme Court decision which establishes that [he] may have been

convicted of a nonexistent offense.” See Reyes-Requena v. United

States,

(5th Cir. 2001); Wesson v. U.S.

Penitentiary Beaumont, Tex., ___ F.3d ___ (5th Cir. Sept. 5,

2002, No. 01-41000),

. The district

court’s judgment is AFFIRMED.