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Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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