               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 02-50018
                         Summary Calendar



GARY SCHMUECKLE,

                                         Petitioner-Appellant,

versus

R.D. MILES, Warden,

                                         Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. A-01-CV-328-JN
                       --------------------
                          August 16, 2002

Before JONES, STEWART and DENNIS, Circuit Judges.

PER CURIAM:*

          Gary Schmueckle, federal prisoner # 72553-080, appeals

the district court's dismissal of his 28 U.S.C. § 2241 petition for

failing to show that he was entitled to bring the action under the

savings clause of 28 U.S.C. § 2255.   Schmueckle acknowledges that

in order to proceed under 28 U.S.C. § 2241 he must demonstrate that

28 U.S.C. § 2255 is an inadequate or ineffective remedy.         He

argues, however, that he need not establish that his claims are


     *
        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that this opinion should not be published and is not precedent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. 02-50018
                                   -2-

based   on   a   retroactively   applicable   Supreme   Court    decision.

Rather, Schmueckle contends that the inadequacy or ineffectiveness

of 28 U.S.C. § 2255 can be demonstrated by showing “cause and

actual prejudice” or “actual innocence.”

             Schmueckle   correctly   acknowledges   that   in   order   to

proceed under 28 U.S.C. § 2241 he must show that his remedy under

28 U.S.C. § 2255 would be inadequate or ineffective to test the

legality of his detention. See Reyes-Requena v. United States, 243

F.3d 893, 901 (5th Cir. 2001).         However, in order to make that

showing, Reyes-Requena requires that a petitioner demonstrate that

his claims are “based on a retroactively applicable Supreme Court

decision which establishes that [he] may have been convicted of a

nonexistent offense” and that the claims were “foreclosed by

circuit law at the time when the claim[s] should have been raised

in [his] trial, appeal, or first 28 U.S.C. § 2255 motion."          Id. at

904.    Schmueckle has failed to satisfy the first prong of the

Reyes-Requena test. Accordingly, the district court did not err in

determining that Schmueckle could not bring his claims under the

savings clause of 28 U.S.C. § 2255.

             AFFIRMED.
