Eguardo JOHNSON, Plaintiff-Appellant, v. Fred MENIFEE, Warden, Otisville, New York, Defendant-Appellee, 40 F. App'x 774

OPINION PER CURIAM. Eguardo Johnson was convicted by jury in the Eastern District of North Carolina of conspiracy to distribute cocaine in violation of 21 U.S.C.A. § 846 (West 2000) and distribution of cocaine in violation of 21 U.S.C.A. § 841 (West 2000). The district court sentenced Johnson to 360 months imprisonment. Johnson subsequently filed a petition pursuant to 28 U.S.C. § 2241 (1994) in the Eastern District of North Carolina. In that petition, Johnson challenged his sentence based upon Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Johnson has never sought post-conviction relief pursuant to 28 U.S.C.A. § 2255 (West Supp.2001). Johnson stated that he filed a § 2241 petition because the one-year statute of limitations had run for a motion pursuant to § 2255. The district court concluded that § 2255 is not rendered inadequate or ineffective merely because an individual is unable to obtain relief under that provision, see In re: Jones, 226 F.3d 328, 333 (4th Cir.2000), and accordingly construed Johnson’s petition as an action filed under § 2255. So construed, the district court denied the motion as time barred.

Subsequent to the district court’s order, this Court held that Apprendi claims could not be initially raised in a § 2255 proceeding. United States v. Sanders, 247 F.3d 139, 146 (4th Cir.2001). More recently, the Court has held that Apprendi claims are not cognizable in a § 2241 petition because Apprendi does not apply retroactively and § 2255 is not rendered inadequate or ineffective merely because a ha-beas petitioner, such as Johnson, is barred from filing a § 2255 motion. See San Miguel v. Dove, 291 F.3d 257, 260-61 & n. 2 (4th Cir.2002).

Thus, Johnson’s claim is not cognizable regardless of whether it is considered as a petition under § 2241 or a motion under § 2255. Accordingly, we affirm the judgment of the district court. We dispense with oral argument, because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.