United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 11, 2006
Charles R. Fulbruge III
Clerk
No. 05-40983
Conference Calendar
RUBEN ROCHA,
Petitioner-Appellant,
versus
RUDY CHILDRESS, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:04-CV-668
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Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Ruben Rocha, federal prisoner # 18815-077, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition,
wherein he challenged his conviction for using or carrying a
firearm during commission of a crime of violence, in violation of
18 U.S.C. § 924(c). Rocha challenged his conviction based on
Bailey v. United States, 516 U.S. 137 (1995).
Rocha argues that his challenge to the firearms offense
falls within the savings clause of 28 U.S.C. § 2255. “[T]he
*
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this opinion should not be published and is not precedent except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. 05-40983
-2-
savings clause of § 2255 applies to a claim (i) that is based on
a retroactively applicable Supreme Court decision which
establishes that the petitioner may have been convicted of a
nonexistent offense and (ii) that was foreclosed by circuit law
at the time when the claim should have been raised in the
petitioner’s trial, appeal, or first § 2255 motion.”
Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir.
2001).
This court has already held that the evidence was sufficient
to support Rocha’s conviction for carrying a firearm under
§ 924(c). See United States v. Rocha, 916 F.2d 219, 236-37 (5th
Cir. 1990). We have also held that this prior holding precludes
Rocha from seeking the application of the savings clause under
§ 2255. See United States v. Rocha, 2002 WL 31049460 at *1 (5th
Cir. Sept. 3, 2002). Rocha has not shown that he meets the first
prong of the Reyes-Requena test. See Reyes-Requena, 243 F.3d at
904.
Accordingly, the district court’s judgment is AFFIRMED.