                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS          April 22, 2003
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                            No. 02-51003
                        Conference Calendar



TERRELL RAY BARNES,

                                    Petitioner-Appellant,

versus

W. SISNEROS, Warden,

                                    Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. A-02-CV-509-JN
                       --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     Terrell Ray Barnes, federal prisoner # 72543-079, appeals

the district court’s dismissal of his 28 U.S.C. § 2241 petition.

Barnes is currently serving a 240-month sentence for conspiracy

to possess with intent to distribute cocaine and aiding and

abetting in violation of 21 U.S.C. §§ 841, 846 and 18 U.S.C. § 2.

Barnes argues that the district court erred in determining that




     *
        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that this opinion should not be published and is not precedent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. 02-51003
                               -2-

he had not shown that 28 U.S.C. § 2255 did not provide an

“inadequate” and “ineffective” postconviction remedy.

     Barnes has failed to show that he is entitled to proceed

under the “savings clause” of 28 U.S.C. § 2255.     See Reyes-

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

proceed under “savings clause,” a petitioner must show that

(1) his claims are based on a retroactively applicable Supreme

Court decision which establishes that he may have been convicted

of a nonexistent offense, and (2) his claims were foreclosed by

circuit law at the time when the claims should have been raised

in his trial, appeal, or first 28 U.S.C. § 2255 motion).    Barnes

relies on inapposite case law and cannot demonstrate that he was

convicted of a “non-existent” offense.    This court has rejected

Barnes’s argument that Apprendi v. New Jersey, 530 U.S. 466

(2000), applies retroactively to cases on collateral review under

Teague v. Lane, 489 U.S. 288 (1989).     See United States v. Brown,

305 F.3d 304, 310 (5th Cir. 2002), petition for cert. filed,

(U.S. Feb. 3, 2003)(No. 02-9606).    Accordingly, the judgment

of the district court is AFFIRMED.
