                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 11, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                              No. 05-40983
                          Conference Calendar



RUBEN ROCHA,

                                      Petitioner-Appellant,

versus

RUDY CHILDRESS, Warden,

                                      Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                      USDC No. 1:04-CV-668
                       --------------------

Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

     Ruben Rocha, federal prisoner # 18815-077, appeals the

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

wherein he challenged his conviction for using or carrying a

firearm during commission of a crime of violence, in violation of

18 U.S.C. § 924(c).   Rocha challenged his conviction based on

Bailey v. United States, 516 U.S. 137 (1995).

     Rocha argues that his challenge to the firearms offense

falls within the savings clause of 28 U.S.C. § 2255.     “[T]he


     *
       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this opinion should not be published and is not precedent except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. 05-40983
                                 -2-

savings clause of § 2255 applies to a claim (i) that is based on

a retroactively applicable Supreme Court decision which

establishes 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).

       This court has already held that the evidence was sufficient

to support Rocha’s conviction for carrying a firearm under

§ 924(c).    See United States v. Rocha, 916 F.2d 219, 236-37 (5th

Cir. 1990).    We have also held that this prior holding precludes

Rocha from seeking the application of the savings clause under

§ 2255.    See United States v. Rocha, 2002 WL 31049460 at *1 (5th

Cir. Sept. 3, 2002).    Rocha has not shown that he meets the first

prong of the Reyes-Requena test.    See Reyes-Requena, 243 F.3d at

904.

       Accordingly, the district court’s judgment is AFFIRMED.
