                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 17, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 03-40935
                        Conference Calendar



DEREK GLEN ADKINS,

                                         Petitioner-Appellant,

versus

N. L. CONNOR, Warden,

                                         Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 5:01-CV-213
                       --------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Derek Glen Adkins, federal prisoner # 24400-077, appeals the

district court’s dismissal of his petition for a writ of habeas

corpus under 28 U.S.C. § 2241.   Because Adkins’ 28 U.S.C. § 2241

petition challenged the validity of his conviction and sentence,

Adkins had to show that 28 U.S.C. § 2255 provided him with an

inadequate or ineffective remedy.   Tolliver v. Dobre, 211 F.3d

876, 878 (5th Cir. 2000).   “[T]he savings clause of [28 U.S.C.]



     *
        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that this opinion should not be published and is not precedent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. 03-40935
                                      -2-

§ 2255 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 [28 U.S.C.] § 2255 motion.”        Reyes-Requena v. United

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

     Adkins argues that the indictment was defective and in

violation of the fair warning, Accardi v. Shaughnessy,** and no

evidence doctrines because it failed to allege all elements of

the offenses charged.     Thus, he pleaded guilty to non-existent

offenses and was actually innocent.

     Adkins’ claims are not based on a retroactively applicable

Supreme Court decision which establishes that he may have been

convicted of a nonexistent offense.        See Reyes-Requena, 243 F.3d

at 904.     To the extent that his claims are based upon the Supreme

Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000),

Apprendi does not apply retroactively to cases on collateral

review and an Apprendi claim does not satisfy the test for filing

a 28 U.S.C. § 2241 petition under the savings clause.        See Wesson

v. U.S. Penitentiary, Beaumont, TX, 305 F.3d 343, 347-48 (5th

Cir. 2002).     Accordingly, Adkins fails to qualify for relief

under 28 U.S.C. § 2255's savings clause provisions.       The district

court’s dismissal of Adkins’ 28 U.S.C. § 2241 petition is


     **
          347 U.S. 260 (1954).
                           No. 03-40935
                                -3-

therefore AFFIRMED.   Adkins’ motion for leave to file a reply

brief out of time is DENIED.

     AFFIRMED; MOTION DENIED.
