               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 02-30346
                         Summary Calendar


FLOYD DAVIS,

                                         Petitioner-Appellant,

versus

CARL CASTERLINE,

                                         Respondent-Appellee.

                        --------------------
           Appeal from the United States District Court
               for the Western District of Louisiana
                         USDC No. 01-CV-2629
                        --------------------
                            August 9, 2002
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Floyd Davis, federal prisoner # 09819-042, appeals the

district court’s denial of his 28 U.S.C. § 2241 petition.   He

argues that he should have been allowed to bring his claim, that

the district court was required to instruct the jury that it must

find drug quantity beyond a reasonable doubt pursuant to Apprendi

v. New Jersey, 530 U.S. 466 (2000), in a 28 U.S.C. § 2241

petition, via the savings clause of 28 U.S.C. § 2255.




     *
        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that this opinion should not be published and is not precedent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. 02-30346
                                -2-

To trigger the savings clause of 28 U.S.C. § 2255, a habeas

petitioner’s claim (1) must be “based on a retroactively

applicable Supreme Court decision which establishes that the

petitioner may have been convicted of a nonexistent offense” and

(2) must have been “foreclosed by circuit law at the time when

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

appeal, or first [28 U.S.C.] § 2255 motion.”   Reyes-Requena v.

United States, 243 F.3d 893, 904 (5th Cir. 2001).

     Davis’s Apprendi claim does not meet the first of these

requirements.   Even assuming Apprendi is retroactively applicable

on collateral review, Apprendi does not establish that Davis was

convicted of and sentenced for “a nonexistent offense.”    Jeffers

v. Chandler, 253 F.3d 827, 831 (5th Cir.), cert. denied, 122 S.

Ct. 476 (2001).

     The district court’s judgment dismissing Davis’s habeas

corpus petition is AFFIRMED.   Davis’s motion to recall this

court’s 1995 mandate in Davis’s prior criminal appeal is DENIED.

     AFFIRMED; MOTION TO RECALL MANDATE DENIED.
