Gonzalez v. USA, No. 07-40844 (5th Cir. 2009)
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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 07-40844 Conference Calendar February 18, 2009 Charles R. Fulbruge III Clerk LUIS GONZALEZ Petitioner-Appellant v. UNITED STATES OF AMERICA Respondent-Appellee Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:07-CV-445 Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges. PER CURIAM:* Luis Gonzalez, federal prisoner # 04434-078, appeals the district court s dismissal of his 28 U.S.C. § 2241 petition, which he filed to challenge his conviction of possession of cocaine with intent to distribute. Gonzalez argues that the district court erred under Castro v. United States, 540 U.S. 375, 383 (2003), in recharacterizing his petition, which asserted a violation of the Speedy Trial Act, as a successive 28 U.S.C. § 2255 motion. Gonzalez s reliance on Castro * Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR. R. 47.5.4. No. 07-40844 is misplaced. Because this was not Gonzalez's first § 2255 motion, the warning required by Castro was unnecessary. See id. Under the savings clause of § 2255(e), a § 2241 petition that attacks custody resulting from a federally imposed sentence may be entertained if the petitioner establishes that the remedy provided under § 2255 is inadequate or ineffective to test the legality of his detention. Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001). To do so, the petitioner must show that (1) his claims are based on a retroactively applicable Supreme Court decision which establishes that the petitioner may have been convicted of a nonexistent offense, and (2) his claims were foreclosed by circuit law at the time when the claim[s] should have been raised in [his] trial, appeal, or first § 2255 motion. Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). Gonzalez has failed to show that his claim of a violation of the Speedy Trial Act satisfies the test for the savings clause. See id. The judgment of the district court is AFFIRMED. 2
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