Duong v. USA

Filing 920070213

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 13, 2007 Charles R. Fulbruge III Clerk No. 06-40515 Conference Calendar

CHI THIEN DUONG, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 2:05-CV-229 -------------------Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges. PER CURIAM:* Chi Thien Duong, federal prisoner # 04236-078, appeals the district court's dismissal of his 28 U.S.C. § 2241 petition challenging his convictions for possession with intent to distribute cocaine and two counts of using and carrying a firearm during and in relation to a drug trafficking offense. Duong

argues that he was actually innocent of the second firearm conviction because he was not convicted of a second drug trafficking offense. He asserts that his second firearm

conviction was improper because the jury instructions on that 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-40515 -2charge were incorrect. He further maintains that the second

firearm conviction violated the prohibition against double jeopardy. In support of his claims, Duong relies upon the

Supreme Court's decisions in Deal v. United States, 508 U.S. 129 (1993), In re Winship, 397 U.S. 358 (1970), and Schlup v. Delo, 513 U.S. 298 (1995), as well as several lower court decisions. We review the district court's findings of fact for clear error and its conclusions of law de novo. Miles, 342 F.3d 378, 381 (5th Cir. 2003). See Christopher v. All of the Supreme

Court decisions relied upon by Duong were already decided by the time Duong filed his 28 U.S.C. § 2255 motion in 1996. As Duong

has not shown that his claims are based upon a retroactively applicable Supreme Court decision that decriminalized the conduct for which he was convicted and were foreclosed at the time he filed his § 2255 motion, Duong has not made the required showing to challenge his convictions in a § 2241 petition. 382. See id. at

Although Duong relied upon the Supreme Court's decision in

Shepard v United States, 544 U.S. 13 (2005), in the district court, he does not raise that argument in this court and the argument is, therefore, waived. 607, 613 (5th Cir. 1999). AFFIRMED. See Hughes v. Johnson, 191 F.3d