                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           May 1, 2003
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 02-60564
                         Summary Calendar



PAUL BOWEN,

                                    Petitioner-Appellant,

versus

KHURSHID Z. YUSUFF,

                                    Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
            for the Southern District of Mississippi
                     USDC No. 5:01-CV-184-RG
                       --------------------

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

PER CURIAM:*

     Paul Bowen (Bowen), federal prisoner # 46674-004, sentenced

in the United States District Court for the Southern District of

Florida, appeals the district court’s dismissal of his 28 U.S.C.

§ 2241 petition.   Bowen argued in his petition that his

conviction and sentence were unconstitutional under Apprendi v.

New Jersey, 530 U.S. 466 (2000).




     *
        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that this opinion should not be published and is not precedent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. 02-60564
                                  -2-

     Because Bowen’s 28 U.S.C. § 2241 petition seeks to challenge

the validity of his conviction and sentence, it must be dismissed

unless it comes under the savings clause of 28 U.S.C. § 2255.

Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000).     The savings

clause applies where “the remedy by motion is inadequate or

ineffective to test the legality of [the petitioner’s]

detention.”     28 U.S.C. § 2255.   To take advantage of the savings

clause under 28 U.S.C. § 2255, Bowen must demonstrate 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 § 2255 motion.”      Wesson v. U.S.

Penitentiary Beaumont, TX, 305 F.3d 343, 347 (5th Cir. 2002),

cert. denied, 123 S. Ct. 1374 (2003).

     We recently have held that Apprendi does not apply

retroactively to cases on collateral review and that an Apprendi

claim does not satisfy the retroactivity element of the first

prong of the test for filing a § 2241 petition under the savings

clause.   Id.    Consequently, Bowen is unable to carry his burden

of proving that his § 2241 petition falls under the savings

clause of § 2255, and he “may not avail himself of section 2241

relief in this case.”     Pack, 218 F.3d at 453.

     Accordingly, the judgment of the district court is hereby

AFFIRMED.
