                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                            UNITED STATES COURT OF APPEALS
                                                                                          April 21, 2003
                                 FOR THE FIFTH CIRCUIT
                                                                                    Charles R. Fulbruge III
                                  _________________________                                 Clerk
                                         No. 02-11009
                                    SUMMARY CALENDAR
                                  _________________________

NELSON TOMAS ZAMBRANO

                       Petitioner - Appellant

   v.

L. E. FLEMING, Warden, Federal Medical Center – Fort Worth

                       Respondent - Appellee

______________________________________________________________________________

                 On Appeal from the United States District Court for the
                   Northern District of Texas, Forth Worth Division
                                  (4:02-CV-672-A)
______________________________________________________________________________

Before REYNALDO G. GARZA, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.

PER CURIAM:1

        Nelson Tomas Zambrano, federal prisoner # 28146-004, appeals the district court’s

judgement construing his 28 U.S.C. § 2241 petition as a successive 28 U.S.C. § 2255 motion and

dismissing it. Zambrano argues that the district court erred in construing his petition as a 28

U.S.C. § 2255 motion and that 28 U.S.C. § 2255 is inadequate or ineffective to test the legality of

his detention. Zambrano has not shown that he is entitled to seek relief under 28 U.S.C. § 2241


        1
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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.

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based on the savings clause of 28 U.S.C. § 2255 as he has not shown that any of his claims rely on

a retroactively applicable Supreme Court decision. See Reyes-Requena v. United States, 243 F.3d

893, 904 (5th Cir. 2001). Because Zambrano is challenging the validity of his underlying

conviction, the district court correctly construed his petition as a 28 U.S.C. § 2255 motion. See

Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). Zambrano acknowledges that he filed a

previous 28 U.S.C. § 2255 motion challenging his conviction. He has not obtained authorization

from the appropriate court of appeals for filing a successive 28 U.S.C. § 2255 motion.

Accordingly, the district court did not err in dismissing his 28 U.S.C. § 2255 motion.

       Zambrano’s appeal is without arguable merit and is DISMISSED as frivolous. Howard v.

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

       APPEAL DISMISSED AS FRIVOLOUS.




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