Conference Calendar JORGE ORTIZ SALAZAR v. United States of America

* 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should not be published and is not precedent except under the limited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. 08-40146
Conference Calendar
JORGE ORTIZ SALAZAR
Petitioner-Appellant
v.
UNITED STATES OF AMERICA
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:07-CV-195
Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Jorge Ortiz Salazar, federal prisoner # 42899-018, pleaded guilty in 2005
in the Middle District of Florida to possession of five kilograms or more of
cocaine with intent to distribute while aboard a vessel subject to U.S. jurisdiction
and was sentenced to 135 months in prison. He did not appeal, and he
unsuccessfully sought relief via a 28 U.S.C. § 2255 motion. He now appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition. Finding no error, we
affirm.
United States Court of Appeals
Fifth Circuit
F I L E D
August 19, 2008
Charles R. Fulbruge III
Clerk

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No. 08-40146
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The primary vehicle for challenging federal custody is a motion under
§ 2255. Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). A § 2241 petition
that attacks custody resulting from a federally imposed sentence may be
entertained under the “savings clause” of § 2255(e) if the petitioner establishes
that the remedy provided under § 2255 is “inadequate or ineffective” to test the
legality of his detention. Id. at 878. Under our savings clause test, Salazar must
present a claim “(i) that is based on a retroactively applicable Supreme Court
decision which establishes that he 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 his trial, appeal, or first § 2255 motion.” Reyes-
Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
Salazar’s arguments regarding the jurisdiction of the sentencing court and
his innocence of the offense do not satisfy the savings clause as they are not
based on a retroactive Supreme Court decision demonstrating that he was
convicted for conduct that did not constitute a crime. See Jeffers v. Chandler,
253 F.3d 827, 831 (5th Cir. 2001). Accordingly, the judgment of the district court
is AFFIRMED.

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