Robert McNeal v. M. Martin

Filing

UNPUBLISHED OPINION FILED. [10-41213 Affirmed] Judge: JLW , Judge: RHB , Judge: FPB. Mandate pull date is 06/27/2011 [10-41213]

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Case: 10-41213 Document: 00511465991 Page: 1 Date Filed: 05/04/2011 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 10-41213 Summary Calendar May 4, 2011 Lyle W. Cayce Clerk ROBERT L. MCNEAL, Petitioner - Appellant v. M. MARTIN, Warden, Respondent - Appellee 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. PER CURIAM:* 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 (2009); and he is entitled to § 2241 relief under the * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. Case: 10-41213 Document: 00511465991 Page: 2 Date Filed: 05/04/2011 No. 10-41213 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. 2

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