                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                              No. 02-40413
                            Summary Calendar



                               JESUS D. LUJAN,

                                                 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-349
                       --------------------
                         November 5, 2002

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

     Jesus Daniel Lujan, federal prisoner #60851-080, appeals the

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

lack of jurisdiction and moves for bond pending appeal. Lujan’s 28

U.S.C. § 2241 petition challenged his conviction for conspiracy to

possess   with   intent   to    distribute   marijuana    and   cocaine   in

violation of 21 U.S.C. §§ 841(a)(1), 846.             He argues that his

conviction and sentence are unconstitutional because the quantity


     *
        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that this opinion should not be published and is not precedent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. 02-40413
                                   -2-

of drugs he possessed is an element of the offense and therefore

should have been charged in the indictment and proven beyond a

reasonable doubt consistent with the Supreme Court’s decision in

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

     Lujan acknowledges that a 28 U.S.C. § 2255 motion is the

primary   means   of   collateral    challenge   of   a   federal   sentence

alleging errors “at or prior to sentencing.”          Pack v. Yusuff, 218

F.3d 448, 451 (5th Cir. 2000).       He argues however that he should be

able to proceed under § 2241 based on the “savings clause” of

§ 2255.

     To proceed under this clause petitioner must show that his

claim is (i) based on a retroactively applicable Supreme Court

decision which establishes that the petitioner may have been

convicted of a non-existent offense, and (ii) that the claim was

foreclosed by circuit law at the time it should have been raised in

petitioner’s trial, appeal or first § 2255 motion.           Reyes-Requena

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

have held that Apprendi is not retroactively applicable, In re

Tatum, 233 F.3d 857, 859 (5th Cir. 2000), causing petitioner’s

“savings clause” claim to fail.

     Accordingly, the district court was correct to treat Lujan’s

28 U.S.C. § 2241 petition as a successive § 2255 motion.            For this

claim to be cognizable in a successive § 2255 motion Lujan must

show that his claim relies on a new rule of constitutional law that

was previously unavailable.         Reyes-Requena v. United States, 243
                            No. 02-40413
                                 -3-

F.3d at 896.   Further, because his conviction was final before the

Court’s decision in Apprendi, that decision must be retroactively

applicable on collateral review for the district court to have

jurisdiction to hear this claim.      Id.   As we have held that

Apprendi is not retroactively applicable, the district court lacks

jurisdiction to hear Lujan’s successive § 2255 motion.

     The district court’s dismissal of Lujan’s petition for lack of

jurisdiction is AFFIRMED, and Lujan’s motion for bond pending

appeal is DENIED.

     AFFIRMED; MOTION DENIED.
