Robert McNeal v. M. Martin

424 F. App'x 322

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 4, 2011
• Docket: 10-41213
• Status: Unpublished

Opinion

PER CURIAM: *

Proceeding pro se and informa pauper-is, 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 retroactively 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.

* 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.