                                                       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. 05-10960
                         Conference Calendar



LARRY LEE MARTIN,

                                     Petitioner-Appellant,

versus

K.J. WENDT, Warden, Federal Correctional Institution,
Seagoville, TX,

                                     Respondent-Appellee.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                      USDC No. 3:05-CV-220
                      --------------------

Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

     Larry Lee Martin, federal prisoner # 04976-078, appeals the

district court’s dismissal of his 28 U.S.C. § 2241 petition,

wherein he challenged his conviction for conspiracy to possess

with intent to distribute crack cocaine, in violation of 21

U.S.C. § 846, possession with intent to distribute crack cocaine,

in violation of 21 U.S.C. § 841, and using or carrying a firearm

during commission of a drug trafficking crime, in violation of 18

U.S.C. § 924(c).    Martin challenged his conviction based on

     *
       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this opinion should not be published and is not precedent except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. 05-10960
                               -2-

Bailey v. United States, 516 U.S. 137 (1995), and United States

v. Booker, 543 U.S. 220 (2005).

     Martin argues that his challenge to the firearms offense

falls within the savings clause of 28 U.S.C. § 2255 in light of

Bailey and Bousley v. United States, 523 U.S. 614 (1998).       He

also argues that the district court abused its discretion by

dismissing his Booker claim with prejudice.    “[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).

     Martin raised a Bailey challenge to his § 924(c) conviction

in his first § 2255 motion, and he has not shown that his claim

was foreclosed when he sought § 2255 relief.    Further, Martin’s

claims based on Booker are foreclosed in light of Padilla v.

United States, 416 F.3d 424, 427 (5th Cir. 2005).    Accordingly,

the district court’s judgment is AFFIRMED.
