IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40285 Conference Calendar

NHA KHIEM TRAN,

Petitioner-Appellant,

versus

N.L. CONNER, Warden,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 5:00-CV-57 -------------------- October 26, 2001

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Nha Khiem Tran, federal prisoner No. 48793-079 #E, argues

that the district court erred in dismissing his

habeas petition challenging his conviction and sentence for lack

of jurisdiction. Tran argues that he does not have an adequate

remedy to challenge his conviction and sentence under

because his purported counsel failed to file a timely

motion under that provision in accord with their agreement.

The proper vehicle for attacking errors that occurred

during or before sentencing is a

motion. Reyes-

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-40285 -2-

Requena v. United States,

(5th Cir. 2001).

Under the "Savings Clause," however, if a prisoner can

demonstrate that the

remedy would be

"ineffective or inadequate to test the legality of [the

prisoner's ] detention," he may be permitted to bring a habeas

corpus claim pursuant to

instead. See

(quoting

). The petitioner bears the burden of

demonstrating that

relief would be ineffective

or inadequate.

Because Tran had no constitutional right to counsel during

postconviction proceedings, he cannot rely on counsel’s failure

to file the motion to seek relief under the Savings Clause.

Pennsylvania v. Finley,

(1987). Nor does the

fact that Tran’s

motion is time-barred render

the

remedy "ineffective or inadequate." Pack v.

Yusuff,

(5th Cir. 2000).

The Savings Clause applies to a claim that is based upon a

retroactively applicable Supreme Court decision which establishes

that the petitioner may have been convicted of a nonexistent

offense, and that was foreclosed by circuit law at the time when

the claim should have been raised in the petitioner's trial,

appeal, or first

motion. Reyes-Requena,

.

Tran has failed to demonstrate that his claims of actual

innocence are based upon a change in the law resulting from a

retroactively applicable Supreme Court decision rendering his

conduct noncriminal. Thus, he has failed to show that his 28 No. 01-40285 -3-

U.S.C. § 2255 remedies are ineffective and inadequate under the

Savings Clause. The district court did not err in dismissing

Tran’s

petition for lack of jurisdiction. The

district court also properly dismissed the jurisdictional issue

with prejudice and properly dismissed all other issues raised by

the petition without prejudice. Pack,

.

Tran’s motion in his reply brief to strike the respondent’s

brief is DENIED.

AFFIRMED; MOTION DENIED.