Zuniga-Hernandez v. Childress

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 9, 2006
Charles R. Fulbruge III
Clerk
No. 05-40985
Summary Calendar
JUAN JOSE ZUNIGA-HERNANDEZ,
Petitioner-Appellant,
versus
RUDY CHILDRESS, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:04-CV-775
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Before Jolly, Dennis, and Clement, Circuit Judges.
PER CURIAM:*
Juan Jose Zuniga-Hernandez, federal prisoner # 23429-034,
appeals the district court’s dismissal of his 28 U.S.C. § 2241
petition, wherein he challenged his conviction for using and
carrying firearms and machineguns during and in relation to a
drug trafficking crime, in violation of 18 U.S.C. § 924(c).
Zungina-Hernandez challenges his conviction based on Bailey v.
United States, 516 U.S. 137 (1995) and a defective indictment
claim.
*
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this opinion should not be published and is not precedent except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. 05-40985
-2-
Zuniga-Hernandez asserts that his challenge to his § 924(c)
conviction falls within the savings clause of 28 U.S.C. § 2255.
Zuniga-Hernandez pleaded guilty to using and carrying firearms
and machineguns during and in relation to a drug trafficking
crime, in violation of § 924(c). See United States v. Zuniga-
Hernandez, 18 F.3d 1254, 1257, 1259 (5th Cir. 1994). Bailey did
nothing to affect Zuniga-Hernandez’s conviction for carrying
firearms and machineguns. See United States v. Rivas, 85 F.3d
193, 195 (5th Cir. 1996). Zuniga-Hernandez therefore cannot show
that he “may have been convicted of a nonexistent offense.” See
Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir.
2001).
Additionally, with regard to his indictment claim, Zuniga-
Hernandez has not shown that there is “a retroactively applicable
Supreme Court decision which establishes that the petitioner may
have been convicted of a nonexistent offense.” See
Reyes-Requena, 243 F.3d at 904. Therefore, Zuniga-Hernandez’s
challenge to the indictment does not fall within the savings
clause of § 2255.
Accordingly, the district court’s judgment is AFFIRMED.