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holding that the prisoner's claim of actual innocence of career-offender sentencing enhancement was not cognizable under Section 2241
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No. 10-41213 Summary Calendar.
May 4, 2011.
Robert L. McNeal, Beaumont, TX, pro se.
Appeal from the United States District Court for the Eastern District of Texas, USDC No. 1:10-CV-446.
Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
Proceeding pro se and in forma pauperis, Robert L. McNeal, federal prisoner # 06212-089, appeals the dismissal of his 28 U.S.C. § 2241 petition challenging his 40-month sentence following a guilty-plea conviction for escape from a federal prison camp. McNeal contends: he is actually innocent of his career-offender sentence enhancement under Sentencing Guideline § 4B1.1 because his escape conviction is not a crime of violence in the light of Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009); and he is entitled to § 2241 relief under the savings clause of 28 U.S.C. § 2255(e). In an appeal from the denial of habeas relief, rulings on legal issues are reviewed de novo; findings of fact, for clear error. Padilla v. United States, 416 F.3d 424, 425 (5th Cir. 2005).
"Section 2255 provides the primary means of collaterally attacking a federal sentence" based upon alleged errors that occurred at, or prior to, sentencing. Id. at 425-26 (citations and internal quotation marks omitted). McNeal's § 2241 petition will be considered only if he establishes that § 2255 is inadequate or ineffective to test the legality of his detention. Id. at 426. McNeal bears the burden of establishing § 2255 as an inadequate or ineffective remedy. See id. This requires his showing: (1) his claim "is based on a retro-actively applicable Supreme Court decision which establishes that the petitioner may have been convicted of a nonexistent offense"; and (2) his claim "was foreclosed by circuit law at the time when the claim should have been raised in the petitioner's trial, appeal, or first § 2255 motion". Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
McNeal's claim fails the first prong of the Reyes-Requena test because he can not establish that his conviction for escape from a federal prison camp was for a nonexistent offense. A claim of actual innocence of a career-offender enhancement is not a claim of actual innocence of the crime of conviction and, thus, not the type of claim warranting review under § 2241. E.g., Kinder v. Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000); see also Padilla, 416 F.3d at 427 (contrasting claims challenging sentencing and claims challenging conviction).
AFFIRMED.