IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40365 Conference Calendar

VICTOR MICHAEL MACIAS,

Petitioner-Appellant,

versus

N. L. CONNER, Warden,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 5:01-CV-51 -------------------- October 29, 2002 Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Victor Michael Macias, federal prisoner # 63420-080, appeals

the district court’s dismissal of his

petition,

asserting that he is actually innocent of the crime to which he

pleaded guilty and that the indictment was invalid. As the

district court determined, because Macias’ petition challenges

his conviction and sentence, it is really a

motion. See Pack v. Yusuff,

(5th Cir. 2000);

Tolliver v. Dobre,

(5th Cir. 2000).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40365 -2-

Although Macias could proceed under

if he

demonstrated that

relief was inadequate or

ineffective, Macias has made no such showing. He does not argue

that

is inadequate in his appellate brief, and

he has therefore abandoned the argument. See Yohey v. Collins,

(5th Cir. 1993). For the first time in his

reply brief, Macias conclusionally argues that

is ineffective, but this court will not consider arguments raised

for the first time in a reply brief. See United States v.

Prince,

(5th Cir. 1989). Even if the court

were to consider the argument, Macias offers no reason why

relief is inadequate in his case and has thus

failed to make the required showing.

Macias has not demonstrated any error in the district

court’s judgment. Accordingly, the judgment is AFFIRMED.