     Case: 09-40723     Document: 00511114378         Page: 1     Date Filed: 05/18/2010




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

                                                  FILED
                                                                           May 18, 2010
                                     No. 09-40723
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

MOHAMMED GHALI,

                                                  Petitioner-Appellant,

v.

KEITH ROY, Warden,

                                                  Respondent-Appellee.


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 5:08-CV-135


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Mohammed Ghali, federal prisoner # 30742-177, appeals the district
court’s dismissal of his petition, filed pursuant to 28 U.S.C. § 2241, in which he
challenged the validity of his conviction for money laundering under 18 U.S.C.
§ 1956(a)(3)(A). Ghali’s challenge was based on the holding in United States v.
Santos, 553 U.S. 507 (2008), regarding the definition of the term “proceeds”
within the money-laundering statute. Ghali contends that his claim may be
considered under the savings clause of 28 U.S.C. § 2255(e) because Santos is

        *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
   Case: 09-40723    Document: 00511114378 Page: 2        Date Filed: 05/18/2010
                                 No. 09-40723

retroactive and establishes that he was convicted of a nonexistent offense and
the claim was foreclosed by circuit law at the time of his direct appeal.
       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) (citation omitted). 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).
      In September 2008, Ghali filed his first § 2255 motion, challenging his
conviction on the same ground he raised in his § 2241 petition. Ghali’s § 2255
motion is currently pending in the district court. He fails to show that the claim
he now raises was foreclosed by circuit law at the time he filed his first § 2255
motion and thus fails to show that his claim falls within the savings clause of
§ 2255(e). See Reyes-Requena, 243 F.3d at 904.
      Accordingly, the judgment of the district court is AFFIRMED. Ghali’s
motion to stay proceedings and to consolidate the appeal with the pending
district court case is DENIED.




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