IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50182 Conference Calendar

DANNY CARROLL STEPHENS,

Petitioner-Appellant,

versus

TROY WILLIAMSON; THE DISTRICT OF TEXAS EL PASO DIVISION,

Respondents-Appellees.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-01-CV-141-DB -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Danny Carroll Stephens, federal prisoner #61583-080, appeals

the district court’s dismissal of his

petition

for lack of jurisdiction. Stephens

petition

challenged his conviction for possession with intent to

distribute methamphetamine in violation of

(a)(1).

Stephens’s

petition argued that his

indictment was defective under Apprendi v. New Jersey, 530 U.S.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-50182 -2-

466 (2000), and that he should be able to bring his Apprendi

claim under the “savings clause” of

. To proceed

under the savings clause of

, Stephens must show

that (1) his claim is based on a retroactively applicable Supreme

Court decision which establishes that he may have been convicted

of a nonexistent offense, and (2) his claim was foreclosed by

circuit law at the time when the claim should have been raised in

his trial, appeal, or first

motion. See Reyes-

Requena v. United States,

(5th Cir. 2001).

We recently decided that an Apprendi claim does not satisfy

the savings clause test set out by Reyes-Requena. See Wesson v.

U.S. Penitentiary Beaumont, TX, F.3d ,

(5th Cir. Sept. 5, 2002, No. 01-41000). Specifically, we

held that Apprendi is not retroactively applicable to cases on

collateral review and that an Apprendi violation does not show

that a petitioner was convicted of a nonexistent offense.

Accordingly, the district court’s dismissal of Stephens’

petition is AFFIRMED.