                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                December 9, 2003

                                                          Charles R. Fulbruge III
                                                                  Clerk
                             No. 03-40872
                         Conference Calendar



BENJAMIN TILLMAN,

                                     Petitioner-Appellant,

versus

UNITED STATES PENITENTIARY; R. D. MILES, Warden,

                                     Respondents-Appellees.

                         --------------------
            Appeal from the United States District Court
                  for the Eastern District of Texas
                         USDC No. 1:03-CV-314
                         --------------------

Before    DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Benjamin Tillman, federal inmate # 04060-017, appeals the

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

Because Tillman’s 28 U.S.C. § 2241 petition challenged the

legality of his conviction, Tillman was required to show that 28

U.S.C. § 2255 provided him with an inadequate or ineffective

remedy.    See Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000).

“[T]he savings clause of § 2255 applies to a claim (i) that is

based on a retroactively applicable Supreme Court decision which

     *
        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that this opinion should not be published and is not precedent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. 03-40872
                               -2-

established 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).

     To bring his claim under the “savings clause,” Tillman

argues that he could not have brought the instant claim that the

sentencing court was without jurisdiction to sentence him until

1998, when the Eleventh Circuit issued Harris v. United States,

149 F.3d 1304 (11th Cir. 1998).   Harris, however, is not a

retroactively applicable Supreme Court decision establishing that

Tillman may have been convicted of a nonexistent offense.

Because Tillman fails to identify any authority demonstrating

that he was convicted of a non-existent offense, his

jurisdictional challenge to his conviction fails to satisfy the

first prong of the Reyes-Requena test.   The district court’s

dismissal of Tillman’s 28 U.S.C. § 2241 petition is therefore

AFFIRMED.
