          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                   FILED
                                                               December 10, 2008
                                No. 08-40441
                             Conference Calendar             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should not be published and is not precedent except under the limited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.




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