Ucciferri v. Chandler

Filing 920091020

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 09-10074 Conference Calendar October 20, 2009 Charles R. Fulbruge III Clerk

NICANDRO P UCCIFERRI, Petitioner-Appellant v. RODNEY CHANDLER, Warden Big Spring Federal Correctional Institution, Respondent-Appellee

Appeal from the United States District Court for the Northern District of Texas USDC No. 5:08-CV-131

Before WIENER, BENAVIDES, and STEWART, Circuit Judges. PER CURIAM:* Nicandro P. Ucciferri, federal prisoner # 10339-018, appeals the dismissal for lack of jurisdiction of his 28 U.S.C. § 2241 petition challenging his sentence for maintaining a building for the purpose of manufacturing marijuana. Ucciferri argues that he is actually innocent, having been convicted of conduct that did not constitute a federal criminal offense.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR.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. 09-10074 Ucciferri may bring this claim in a § 2241 proceeding only by demonstrating under the "savings clause" that the 28 U.S.C. § 2255 remedy would be "inadequate or ineffective." Reyes-Requena v. United States, 243 F.3d 893, 900 (5th Cir. 2001). "[T]he savings clause of § 2255 applies to a claim (i) that is based on a retroactively applicable Supreme Court decision which established that the petitioner may have been convicted of a nonexistent offense and (ii) that was foreclosed by circuit law at the time when the claim should have been raised in the petitioner's trial, appeal, or first § 2255 motion." Id. at 904. Conceding that his actual innocence claim meets neither prong of the Reyes-Requena test, Ucciferri nevertheless urges us to hold the savings clause inapplicable under the facts of his case. The Reyes-Requena actual innocence test, however, is binding precedent in this circuit. See Wesson v. U.S.

Penitentiary Beaumont, TX, 305 F.3d 343, 347 (5th Cir. 2002); see also In re Brown, 457 F.3d 392, 394 n.1 (5th Cir. 2006). AFFIRMED.

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