United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 13, 2007
Charles R. Fulbruge III
Clerk
No. 06-40515
Conference Calendar
CHI THIEN DUONG,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:05-CV-229
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Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Chi Thien Duong, federal prisoner # 04236-078, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition
challenging his convictions for possession with intent to
distribute cocaine and two counts of using and carrying a firearm
during and in relation to a drug trafficking offense. Duong
argues that he was actually innocent of the second firearm
conviction because he was not convicted of a second drug
trafficking offense. He asserts that his second firearm
conviction was improper because the jury instructions on that
*
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this opinion should not be published and is not precedent except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. 06-40515
-2-
charge were incorrect. He further maintains that the second
firearm conviction violated the prohibition against double
jeopardy. In support of his claims, Duong relies upon the
Supreme Court’s decisions in Deal v. United States, 508 U.S. 129
(1993), In re Winship, 397 U.S. 358 (1970), and Schlup v. Delo,
513 U.S. 298 (1995), as well as several lower court decisions.
We review the district court’s findings of fact for clear
error and its conclusions of law de novo. See Christopher v.
Miles, 342 F.3d 378, 381 (5th Cir. 2003). All of the Supreme
Court decisions relied upon by Duong were already decided by the
time Duong filed his 28 U.S.C. § 2255 motion in 1996. As Duong
has not shown that his claims are based upon a retroactively
applicable Supreme Court decision that decriminalized the conduct
for which he was convicted and were foreclosed at the time he
filed his § 2255 motion, Duong has not made the required showing
to challenge his convictions in a § 2241 petition. See id. at
382. Although Duong relied upon the Supreme Court’s decision in
Shepard v United States, 544 U.S. 13 (2005), in the district
court, he does not raise that argument in this court and the
argument is, therefore, waived. See Hughes v. Johnson, 191 F.3d
607, 613 (5th Cir. 1999).
AFFIRMED.