     Case: 11-10431     Document: 00511670535         Page: 1     Date Filed: 11/18/2011




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

                                                                            FILED
                                                                        November 18, 2011
                                     No. 11-10431
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JEROME F. DEERING BEY,

                                                  Petitioner-Appellant

v.

REBECCA TAMEZ, Warden-FCI Fort Worth,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:10-CV-827


Before REAVLEY, SMITH and PRADO, Circuit Judges.
PER CURIAM:*
        Jerome F. Deering Bey, federal prisoner # 38149-019, appeals the district
court’s dismissal of his 28 U.S.C. § 2241 petition for lack of jurisdiction. He
argues that he warrants application of the 28 U.S.C. § 2255 savings clause
because the Fair Sentencing Act of 2010 (FSA) renders him actually innocent of
his crimes of conviction, his conviction constitutes a manifest miscarriage of
justice, and failure to apply the FSA to his conviction violates the Equal
Protection Clause.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10431   Document: 00511670535     Page: 2   Date Filed: 11/18/2011

                                   No. 11-10431

      As Bey challenges the legality of his sentence, rather than the manner in
which it is being executed, the district court did not err in concluding that his
claim arises under § 2255. See Padilla v. United States, 416 F.3d 424, 425-26
(5th Cir. 2005). Because he has not shown that his claim “is based on a
retroactively applicable Supreme Court decision which establishes that [he] may
have been convicted of a nonexistent offense,” Bey has not shown that he is
entitled to proceed under the savings clause of § 2255. See Reyes-Requena v.
United States, 243 F.3d 893, 904 (5th Cir. 2001). Accordingly, the judgment of
the district court is AFFIRMED. The Respondent’s motion for summary
affirmance is GRANTED, and its alternative motion for an extension of time in
which to file a brief is DENIED.




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