United States v. Valencia

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-21143
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLIPBERTO VALENCIA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-98-CV-3081
USDC No. H-91-CR-39-04
--------------------
May 29, 2001
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
Clipberto Valencia, federal prisoner #59055-079, appeals
from the denial of his 28 U.S.C. § 2241 petition, a petition that
was construed as a motion for relief pursuant to 28 U.S.C.
§ 2255. We granted Valencia a certificate of appealability (COA)
on the issue whether the expiration of the limitations period to
seek relief pursuant to § 2255 may render § 2255 ineffective as
an avenue of relief on claims raise pursuant to Bailey v. United

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No. 98-21143
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States, 516 U.S. 137 (1995), allowing Valencia to seek relief
pursuant to § 2241.
Bailey was decided in 1995, before the limitations period
closed for Valencia to file a § 2255 motion. Valencia’s Bailey
claim therefore was not foreclosed by existing law during the
period when he could have filed a timely motion. The savings
clause of § 2255 therefore did not apply to Valencia’s case,
allowing him to proceed under § 2241. Reyes-Requena v. United
States, ___ F.3d ___, No. 99-41254 (5th Cir. Feb. 28, 2001), 2001
WL 197931 at *10.
AFFIRMED.

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