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

                                                FILED
                                                                October 20, 2009
                                No. 09-10074
                             Conference Calendar             Charles R. Fulbruge III
                                                                     Clerk

NICANDRO P UCCIFERRI,

                                            Petitioner-Appellant

v.

RODNEY CHANDLER, Warden Big Spring Federal Correctional Institution,

                                            Respondent-Appellee


                 Appeal from the United States District Court
                      for the Northern District of Texas
                            USDC No. 5:08-CV-131


Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
      Nicandro P. Ucciferri, federal prisoner # 10339-018, appeals the dismissal
for lack of jurisdiction of his 28 U.S.C. § 2241 petition challenging his sentence
for maintaining a building for the purpose of manufacturing marijuana.
Ucciferri argues that he is actually innocent, having been convicted of conduct
that did not constitute a federal criminal offense.




      *
      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should not be published and is not precedent except under the limited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. 09-10074

      Ucciferri may bring this claim in a § 2241 proceeding only by
demonstrating under the “savings clause” that the 28 U.S.C. § 2255 remedy
would be “inadequate or ineffective.” Reyes-Requena v. United States, 243 F.3d
893, 900 (5th Cir. 2001). “[T]he savings clause of § 2255 applies to a claim
(i) that is based on a retroactively applicable Supreme Court decision which
established that the petitioner may have been convicted of a nonexistent offense
and (ii) that was foreclosed by circuit law at the time when the claim should
have been raised in the petitioner’s trial, appeal, or first § 2255 motion.” Id. at
904. Conceding that his actual innocence claim meets neither prong of the
Reyes-Requena test, Ucciferri nevertheless urges us to hold the savings clause
inapplicable under the facts of his case. The Reyes-Requena actual innocence
test, however, is binding precedent in this circuit.        See Wesson v. U.S.
Penitentiary Beaumont, TX, 305 F.3d 343, 347 (5th Cir. 2002); see also In re
Brown, 457 F.3d 392, 394 n.1 (5th Cir. 2006).
      AFFIRMED.




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