United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS June 23, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41091
Conference Calendar
THOMAS PADILLA,
Petitioner-Appellant,
versus
JONATHON DOBRE, Warden,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:01-CV-157
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Thomas Padilla (Padilla), federal prisoner # 18822-077,
appeals the district court’s dismissal of his 28 U.S.C. § 2241
petition in which he challenged his two convictions for aiding
and abetting the carrying and use of a firearm during the
commission of a crime of violence, violations of 18 U.S.C.
§ 924(c) and § 2. Padilla argues that his firearms convictions
are invalid pursuant to Bailey v. United States, 516 U.S. 137
(1995) because the district court gave an improper jury
*
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this opinion should not be published and is not precedent except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. 03-41091
-2-
instruction regarding “use” of a firearm under § 924(c). He also
argues that the district court’s erroneous pre-Bailey “use”
instruction constructively amended the indictment to include a
charge of possession of a firearm. Padilla further contends that
Count 11 of the indictment is fatally defective because it does
not specify which federal statute he violated.
In order to file a 28 U.S.C. § 2241 petition pursuant to the
savings clause of 28 U.S.C. § 2255, the petitioner must show
that: (i) his claims are based on a retroactively applicable
Supreme Court decision which establishes that the petitioner may
have been convicted of a nonexistent offense and (ii) his claims
were foreclosed by circuit law at the time when the claims should
have been raised in his trial, appeal, or first 28 U.S.C. § 2255
motion. See Reyes-Requena v. United States, 243 F.3d 893, 904
(5th Cir. 2001). Padilla’s Bailey-based claims fail to satisfy
the requirements of the savings clause because Padilla was
indicted for and convicted of aiding and abetting the use and
carrying of a firearm during the commission of a crime of
violence. As Bailey had no effect on the definition of
“carrying” under 18 U.S.C. § 924(c), see United States v. Rivas,
85 F.3d 193, 195 (5th Cir. 1996), Padilla was convicted of an
offense. Thus, he cannot meet the first prong of the Reyes-
Requena test.
For the first time on appeal, Padilla argues that Count 11
of the indictment is fatally defective because it fails to
No. 03-41091
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specify which federal statute he violated. This newly raised
claim is not reviewable for the first time on appeal. See United
States v. Pardue, 36 F.3d 429, 431 (5th Cir. 1994).
Accordingly, the district court’s dismissal of Padilla’s
§ 2241 petition is AFFIRMED.