                                                        United States Court of Appeals
                                                                 Fifth Circuit

                                                             FILED
               IN THE UNITED STATES COURT OF APPEALS        June 23, 2004
                       FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk

                             No. 03-41091
                          Conference Calendar



THOMAS PADILLA,

                                           Petitioner-Appellant,

versus

JONATHON DOBRE, Warden,

                                           Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 1:01-CV-157
                       --------------------

Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Thomas Padilla (Padilla), federal prisoner # 18822-077,

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

petition in which he challenged his two convictions for aiding

and abetting the carrying and use of a firearm during the

commission of a crime of violence, violations of 18 U.S.C.

§ 924(c) and § 2.   Padilla argues that his firearms convictions

are invalid pursuant to Bailey v. United States, 516 U.S. 137

(1995) because the district court gave an improper jury


     *
       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this opinion should not be published and is not precedent except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. 03-41091
                                 -2-

instruction regarding “use” of a firearm under § 924(c).    He also

argues that the district court’s erroneous pre-Bailey “use”

instruction constructively amended the indictment to include a

charge of possession of a firearm.   Padilla further contends that

Count 11 of the indictment is fatally defective because it does

not specify which federal statute he violated.

     In order to file a 28 U.S.C. § 2241 petition pursuant to the

savings clause of 28 U.S.C. § 2255, the petitioner must show

that: (i) his claims are based on a retroactively applicable

Supreme Court decision which establishes that the petitioner may

have been convicted of a nonexistent offense and (ii) his claims

were foreclosed by circuit law at the time when the claims should

have been raised in his trial, appeal, or first 28 U.S.C. § 2255

motion.    See Reyes-Requena v. United States, 243 F.3d 893, 904

(5th Cir. 2001).   Padilla’s Bailey-based claims fail to satisfy

the requirements of the savings clause because Padilla was

indicted for and convicted of aiding and abetting the use and

carrying of a firearm during the commission of a crime of

violence.   As Bailey had no effect on the definition of

“carrying” under 18 U.S.C. § 924(c), see United States v. Rivas,

85 F.3d 193, 195 (5th Cir. 1996), Padilla was convicted of an

offense.    Thus, he cannot meet the first prong of the Reyes-

Requena test.

     For the first time on appeal, Padilla argues that Count 11

of the indictment is fatally defective because it fails to
                          No. 03-41091
                               -3-

specify which federal statute he violated.   This newly raised

claim is not reviewable for the first time on appeal.   See United

States v. Pardue, 36 F.3d 429, 431 (5th Cir. 1994).

     Accordingly, the district court’s dismissal of Padilla’s

§ 2241 petition is AFFIRMED.
