                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 10, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 03-40383
                        Conference Calendar



GAYLON DON BALL,

                                         Petitioner-Appellant,

versus

N. L. CONNER, Warden,

                                         Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 5:00-CV-293
                       --------------------

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

PER CURIAM:*

     Gaylon Don Ball, federal prisoner #17290-009, appeals the

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

which he challenged his convictions for conspiracy to manufacture

amphetamine and attempting to manufacture amphetamine.      Ball

argues that he is entitled to relief under Apprendi v. New

Jersey, 530 U.S. 466 (2000), and that his counsel was ineffective

for failure to object to his lengthy sentence.   Ball further



     *
        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that this opinion should not be published and is not precedent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. 03-40383
                                -2-

argues that the “rule of lenity” should have been applied to

determine the appropriate sentencing range.

     This court has held that Apprendi does not apply

retroactively to cases on collateral review and that an Apprendi

claim does not satisfy the requirements for filing a 28 U.S.C.

§ 2241 petition under the “savings clause” of 28 U.S.C. § 2255.

See Wesson v. U.S. Penitentiary Beaumont, TX, 305 F.3d 343, 347-

48 (5th Cir. 2002), cert. denied, 123 S. Ct. 1374 (2003); United

States v. Brown, 305 F.3d 304, 309 (5th Cir. 2002).

Additionally, Ball’s claim of ineffective assistance of counsel

fails to satisfy the requirements of the savings clause.    The

claim is not based on a retroactively applicable Supreme Court

decision which establishes Ball’s innocence.    Furthermore, the

claim could have been raised on direct appeal or in Ball’s first

§ 2255 motion.   See Reyes-Requena v. United States, 243 F.3d 893,

904 (5th Cir. 2001).   Ball’s “rule of lenity” argument is raised

for the first time on appeal and consequently is unreviewable.

See United States v. Pardue, 36 F.3d 429, 431 (5th Cir. 1994).

     Based on the foregoing, the district court’s dismissal of

Ball’s 28 U.S.C. § 2241 petition is AFFIRMED.
