                                                        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. 03-11102
                         Conference Calendar



DON BENNY ANDERSON,

                                     Petitioner-Appellant,

versus

L.E. FLEMING,

                                     Respondent-Appellee.


                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 4:03-CV-1145-Y
                       --------------------

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

PER CURIAM:*

     Don Benny Anderson, Federal prisoner # 060260-026, has

appealed the district court’s judgment dismissing his petition

for a writ of habeas corpus, under 28 U.S.C. § 2241, challenging

a conviction for interference with commerce by threats of

violence and aiding and abetting, in violation of 18 U.S.C.

§§ 1951 & 2.    See United States v. Anderson, 716 F.2d 446 (7th

Cir. 1983).    Anderson contends that the trial court was without

jurisdiction because the Government failed to establish that 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this opinion should not be published and is not precedent except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. 03-11102
                                  -2-

offense resulted in a “commercial injury” and so affected

interstate commerce.     Because the Government did not make such a

showing, he contends, the Government lacked “standing” to

prosecute him.

     Anderson contends that he should be permitted to pursue this

claim in a 28 U.S.C. § 2241 proceeding under the Savings Clause

of 28 U.S.C. § 2255 because this claim is based upon a novel

legal theory.    Anderson does not contend that the claim he wishes

to assert is based upon a retroactively applicable Supreme Court

decision which establishes that he may have been convicted of a

nonexistent offense.     Nor has he shown that his claim was

foreclosed previously by circuit precedent.      Accordingly, he has

not carried his burden of showing that his claim may be asserted

under the Savings Clause.     See Reyes-Requena v. United States,

243 F.3d 893, 904 (5th Cir. 2001).

     We note also that the question whether the Government had

carried its burden of showing an interstate nexus was raised on

direct appeal and was rejected.     See Anderson, 716 F.2d at 450.

The appeal is dismissed as frivolous.       See Howard v. King, 707

F.2d 215, 220 (5th Cir. 1983); 5TH CIR. R. 42.2.

     APPEAL DISMISSED.
