Tenorio v. Kastner, No. 08-40441 (5th Cir. 2008)

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 08-40441 Conference Calendar December 10, 2008 Charles R. Fulbruge III Clerk FERNANDO TENORIO Petitioner-Appellant v. PAUL A KASTNER, Warden Respondent-Appellee Appeal from the United States District Court for the Eastern District of Texas USDC No. 5:07-CV-107 Before DAVIS, WIENER, and PRADO, Circuit Judges. PER CURIAM:* Fernando Tenorio, federal prisoner # 38994-018, appeals the dismissal of his 28 U.S.C. § 2241 petition challenging the validity of his conviction for conspiracy to possess with the intent to distribute and possession with the intent to distribute cocaine, in violation of 46 U.S.C. § 1903 (now codified at 46 U.S.C. § 70503), and resulting 252-month sentence. Tenorio has not shown that the district court erred by concluding that his claims, which arose from events that occurred prior to sentencing, attacked the validity of his conviction and sentence * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-40441 and therefore that the petition was properly construed as a 28 U.S.C. § 2255 motion. See Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000); Cox v. Warden, Fed. Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990). He also has failed to demonstrate that he should be permitted to proceed with his § 2241 petition under the savings clause of § 2255(e), as he has not shown that his claims are based on a retroactively applicable Supreme Court case which establishes that he was convicted of a nonexistent offense. See Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). Accordingly, the district court s judgment is AFFIRMED. 2

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