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

                                                FILED
                                                                February 18, 2009
                                No. 07-40844
                             Conference Calendar              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should not be published and is not precedent except under the limited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.




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