IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40991 Conference Calendar

MODESTO RIOS,

Petitioner-Appellant,

versus

JOHN W. TOMBONE,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:01-CV-338 -------------------- December 12, 2001 Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Modesto Rios, federal prisoner # 48766-079, argues that the

district court erred in dismissing his

habeas

petition alleging that his trial and appellate counsel were

ineffective in failing to challenge the manner in which his

sentence was determined. He argues that he does not have an

adequate postconviction remedy to challenge his sentence under

because this court has previously denied his

request to file a successive motion.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40991 -2-

The proper vehicle for attacking errors that occurred

during or before sentencing is a

motion. Reyes-

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 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,

. Rios has failed to demonstrate that his claim is

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

remedies are ineffective and inadequate under the

savings clause. The district court did not err in dismissing

Rios’

petition.

AFFIRMED.