United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 21, 2004
Charles R. Fulbruge III
Clerk
No. 04-10014
Conference Calendar
WILLIAM HERBERT HARWOOD,
Petitioner-Appellant,
versus
L.E. FLEMING, Warden, Federal Medical Center -- Fort Worth,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CV-1437-A
--------------------
Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
William Herbert Harwood, federal prisoner # 03210-063,
convicted in Oklahoma and incarcerated in Texas, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition
challenging his 18 U.S.C. § 924(c) conviction. The district
court determined that Harwood failed to satisfy the requirements
of 28 U.S.C. § 2255's savings clause to allow him to raise his 28
U.S.C. § 2255 claim in a 28 U.S.C. § 2241 petition.
*
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that this opinion should not be published and is not precedent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. 04-10014
-2-
Harwood argues that, in light of Bailey v. United States,
516 U.S. 137 (1995), he was convicted based upon conduct no
longer criminal under 18 U.S.C. § 924(c); that this claim was
foreclosed by Tenth Circuit precedent at the time of his
conviction; and that he cannot raise the claim in a successive 28
U.S.C. § 2255 motion because Bailey did not create a new rule of
constitutional law. Harwood filed 28 U.S.C. § 2255 motions in
1996 and 1998, after Bailey was decided. He has not shown that
the claim was foreclosed by circuit law at the time he filed his
prior 28 U.S.C. § 2255 motions, and he therefore has not shown
that 28 U.S.C. § 2255 “is inadequate or ineffective to test the
legality of his detention.” Reyes-Requena v. United States, 243
F.3d 893, 904 (5th Cir. 2001); 28 U.S.C. § 2255.
AFFIRMED.