                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 18, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 03-30855
                        Conference Calendar



GERALD DAMONE HOPPER,

                                    Petitioner-Appellant,

versus

ROBERT M. TAPIA,

                                    Respondent-Appellee.

                        --------------------
           Appeal from the United States District Court
               for the Western District of Louisiana
                        USDC No. 1:03-CV-711
                        --------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Gerald Damone Hopper, federal prisoner # 12071-058, appeals

the district court’s dismissal with prejudice of his 28 U.S.C.

§ 2241 petition.   Hopper argues that his claims fall under

the savings clause of 28 U.S.C. § 2255 because that section

is inadequate or ineffective to test the legality of his

imprisonment and, alternatively, that he should be allowed to

proceed under 28 U.S.C. § 2241 to avoid a manifest miscarriage of

justice.   Both of Hopper’s arguments are based upon his

     *
        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that this opinion should not be published and is not precedent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. 03-30855
                               -2-

contention that he is actually innocent of the crimes of

conviction due to an alleged constructive amendment to his

indictment by the trial court.

     “[T]he savings clause of [28 U.S.C.] § 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

[28 U.S.C.] § 2255 motion.”   Reyes-Requena v. United States,

243 F.3d 893, 904 (5th Cir. 2001).   Hopper does not rely on any

retroactively applicable Supreme Court decisions in support of

his claim of actual innocence.   Moreover, he concedes on appeal

that he raised his claims in his initial 28 U.S.C. § 2255 motion.

A petition filed under 28 U.S.C. § 2241 is not the proper forum

to contest the denial of that motion.

     Hopper has not met either prong of the Reyes-Requena test,

and thus he cannot use 28 U.S.C. § 2241 to bring his habeas

corpus claims challenging his federal sentence.   See id.

Accordingly, the judgment of the district court is AFFIRMED.
