                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
                                                                April 24, 2003
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                Charles R. Fulbruge III
                                                                    Clerk


                              No. 02-50779
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

GEORGE ROBERT HURLBURT,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. EP-01-CV-221-DB
                    USDC No. EP-97-CR-602-3-DB
                       --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     George Robert Hurlburt, federal prisoner # 81019-080, was

sentenced to 135 months of imprisonment for his conviction of

conspiracy to possess with intent to distribute marijuana.

Hurlburt appeals the district court’s denial of his 28 U.S.C.

§ 2255 motion as time-barred.




     *
        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that this opinion should not be published and is not precedent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. 02-50779
                               -2-

     Hurlburt argues that his 28 U.S.C. § 2255 motion was timely

based on Apprendi v. New Jersey, 530 U.S. 466 (2000).   Hurlburt’s

argument is foreclosed by United States v. Brown, 305 F.3d 304,

310 (5th Cir. 2002), petition for cert. filed, (U.S. Feb. 3,

2003)(No. 02-9606), which held that Apprendi “is not

retroactively applicable to initial petitions under § 2255.”

The district court did not err in denying Hurlburt’s motion.

     AFFIRMED.
