                                                       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.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 2:05-CV-229
                      --------------------

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this opinion should not be published and is not precedent except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.
