                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS         October 21, 2004
                        FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                              No. 04-60235
                          Conference Calendar



FRANCISCO BARRERA-DIAZ,

                                           Petitioner-Appellant,

versus

M. PETTIFORD,

                                           Respondent-Appellee.

                      --------------------
          Appeal from the United States District Court
            for the Southern District of Mississippi
                     USDC No. 5:03-CV-439-R
                      --------------------


Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

     Francisco Barrera-Diaz (Barrera), federal prisoner no.

38552-004, filed a petition for habeas corpus under 28 U.S.C.

§ 2241 in the Southern District of Mississippi, where he is

incarcerated for drug-trafficking and firearm convictions.         He

contends that his firearm conviction is invalid under Bailey v.

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

     The district court correctly construed the petition as a

successive motion under 28 U.S.C. § 2255 because Barrera has

filed a previous motion and again attacks his conviction and

     *
        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that this opinion should not be published and is not precedent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. 04-60235
                                -2-

sentence.   See Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir.

2000).   The district court also correctly determined that

Barrera’s petition is not permitted by the “savings clause” of 28

U.S.C. § 2255 because Barrera was able to assert his Bailey claim

in a prior motion.   See 28 U.S.C. § 2255; Reyes-Requena v. United

States, 243 F.3d 893, 904 (5th Cir. 2001).   The district court

lacked jurisdiction over Barrera’s successive motion because it

could be filed only if authorized by the Eleventh Circuit Court

of Appeals and only in the Southern District of Florida, where

Barrera was convicted.   See 28 U.S.C. § 2255.

     The appeal is frivolous, and it is dismissed.   See Howard v.

King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.

Further frivolous filings will subject Barrera to sanctions.

     APPEAL DISMISSED; SANCTION WARNING ISSUED.
