                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                                 No. 01-40615
                               Summary Calendar



                          JAMES ALEX MINNIFIELD,

                                                    Petitioner-Appellant,

                                     versus

                         JONATHAN DOBRE, Warden,

                                                     Respondent-Appellee.

                           - - - - - - - - - -
             Appeal from the United States District Court
                   for the Eastern District of Texas
                          USDC No. 1:01-CV-253
                           - - - - - - - - - -
                            September 26, 2001

Before DAVIS, DUHÉ, and DENNIS, Circuit Judges.

PER CURIAM:1

     James Alex Minnifield, federal prisoner # 43482-078, appeals

the district court’s denial of his 28 U.S.C. § 2241 petition.

Minnifield     argues   that   his   convictions   for   possession   of   an

unregistered weapon and using or carrying a firearm during and in

relation to a drug-trafficking offense should be vacated because

the jury instructions given for these counts were unconstitutional

under Staples v. United States, 511 U.S. 600 (1994), and Bailey v.

United States, 516 U.S. 137 (1995).           He contends that his claims

fall within the savings clause in 28 U.S.C. § 2255, and he argues

     1
        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that this opinion should not be published and is not precedent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.
for the first time on appeal that review is necessary to prevent a

fundamental miscarriage of justice.

     “[T]he 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).   Minnifield filed a 28

U.S.C. § 2255 motion on June 5, 1996, after Bailey and Staples were

decided.   Therefore, his present petition does not fall within the

savings clause because he has not shown that these claims were

foreclosed by circuit law when he filed his 28 U.S.C. § 2255

motion.

     AFFIRMED.




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