                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 24, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 03-40166
                        Conference Calendar


TONY FUENTE DURAN,

                                    Petitioner-Appellant,

versus

JOHN M. TOMBONE, Warden,

                                    Respondent-Appellee.

                         --------------------
            Appeal from the United States District Court
                  for the Eastern District of Texas
                         USDC No. 1:02-CV-762
                         --------------------

Before DeMOSS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Tony Fuente Duran, federal prisoner # 66501-079, appeals the

district court’s dismissal with prejudice of his 28 U.S.C. § 2241

petition.   Duran argues that the district court erred in not

addressing his actual-innocence claim on the merits.     Duran has

failed to identify a retroactively applicable Supreme Court

decision which establishes that he may have been convicted of a

nonexistent offense.   His claim, therefore, does not satisfy the

savings clause of 28 U.S.C. § 2255, and he is not entitled to


     *
        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that this opinion should not be published and is not precedent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. 03-40166
                                 -2-

utilize 28 U.S.C. § 2241.   See Reyes-Requena v. United States,

243 F.3d 893 (5th Cir. 2001).   This appeal is without arguable

merit and, therefore, it is DISMISSED as frivolous.   See Howard

v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.

     APPEAL DISMISSED.
