IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-60196 Conference Calendar

CHARLIE WEST SCOTT,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 5:01-CV-72-RG -------------------- February 20, 2003

Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Charlie West Scott, now federal prisoner #02199-043, appeals

the district court’s dismissal of his

habeas

corpus petition raising a challenge pursuant to Apprendi v. New

Jersey,

(2000), to his conviction and sentence for

conspiring to possess with the intent to distribute cocaine base,

possessing with the intent to distribute cocaine base, and

possessing with the intent to distribute cocaine base within

1,000 feet of a school. Scott argues that he is entitled to

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-60196 -2-

raise Apprendi claims in a

petition, that the

drug quantity should have been alleged in his indictment, and

that the issue of drug quantity should have been submitted to the

jury, who could not have found him responsible for the quantity

of drugs attributed to him at sentencing.

Under the “savings clause” of

, a

petition that attacks custody resulting from a federal

sentence may be entertained only if the petitioner establishes

that the

remedy is inadequate or ineffective to

test the legality of his detention. See

;

Tolliver v. Dobre,

(5th Cir. 2000). The

savings clause applies to a claim “(i) that is based on a

retroactively applicable Supreme Court decision which establishes

that the petitioner may have been convicted of a nonexistent

offense and (ii) that was foreclosed by circuit law at the time

when the claim should have been raised in the petitioner’s trial,

appeal, or first § 2255 motion.” Reyes-Requena v. United States,

(5th Cir. 2001). Because Apprendi is not

retroactively applicable on collateral review, Scott’s Apprendi

claims do not satisfy the requirements of the savings clause and

thus cannot be raised in a

petition. See Wesson

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

(5th Cir.

2002).

AFFIRMED.