Duran v. Tombone

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 24, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40166
Conference Calendar
TONY FUENTE DURAN,
Petitioner-Appellant,
versus
JOHN M. TOMBONE, Warden,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:02-CV-762
--------------------
Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Tony Fuente Duran, federal prisoner # 66501-079, appeals the
district court’s dismissal with prejudice of his 28 U.S.C. § 2241
petition. Duran argues that the district court erred in not
addressing his actual-innocence claim on the merits. Duran has
failed to identify a retroactively applicable Supreme Court
decision which establishes that he may have been convicted of a
nonexistent offense. His claim, therefore, does not satisfy the
savings clause of 28 U.S.C. § 2255, and he is not entitled to

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No. 03-40166
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utilize 28 U.S.C. § 2241. See Reyes-Requena v. United States,
243 F.3d 893 (5th Cir. 2001). This appeal is without arguable
merit and, therefore, it is DISMISSED as frivolous. See Howard
v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.
APPEAL DISMISSED.

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