IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-10597 Summary Calendar

GARRY DAVID GALLARDO, Petitioner-Appellant,

versus

GEORGE E. KILLINGER, Warden, FCI Ft. Worth, TX., Respondent-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 4:95-CV-328-A - - - - - - - - - - November 26, 1996 Before GARWOOD, JOLLY, and DENNIS, Circuit Judges.

PER CURIAM:*

Garry Gallardo, # 41571-080, appeals the dismissal of his

petition for habeas corpus, which he filed pursuant to

. Gallardo argues that the district court erred by

dismissing his petition because the indictment under which he was

convicted was defective and thereby divested the sentencing court

of jurisdiction. Gallardo also argues that his § 2241 petition

filed in the Northern District of Texas was the appropriate

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 96-10597 - 2 -

vehicle to present his requested remedy because the “convicting

court” erroneously denied him permission to file a § 2255 motion

in the Western District of Texas. We have reviewed the record

and Gallardo’s briefs and find no reversible error. See

Broussard v. Lippman,

(5th Cir.), cert.

denied,

(1981). Because the appeal is without

arguable merit, it is frivolous and, therefore, is DISMISSED.

5th Cir. R. 42.2.

APPEAL DISMISSED.