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stating that "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 that warrants review under § 2241"; concluding that petitioner, who argued that he was actually innocent of his sentence under the Armed Career Criminal Act because his prior conviction for larceny from a person was not a violent felony in light of Johnson, did not show that remedy of § 2255 was inadequate or ineffective
Summary of this case from Turner v. FisherOpinion
No. 11-10060 Summary Calendar.
May 27, 2011.
Alex Sonni Glover, Jr., Fort Worth, TX, pro se.
Appeal from the United States District Court for the Northern District of Texas, USDC No. 4:10-CV-964.
Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
Alex Sonni Glover, Jr., appeals the dismissal of a 28 U.S.C. § 2241 petition challenging his 180-month sentence for being a felon in possession of a firearm. Glover argued that he was actually innocent of his sentence under the Armed Career Criminal Act because his prior Nevada conviction for larceny from a person was not a violent felony in light of Johnson v. United States, ___ U.S. ___, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). His § 2241 petition also challenged the denial of his 28 U.S.C. § 2255 motion.
As a general rule, a federal prisoner who seeks to collaterally challenge the legality of his conviction or sentence must file a § 2255 motion. Padilla v. United States, 416 F.3d 424, 426-27 (5th Cir. 2005). Such claims may be raised in a § 2241 petition under the savings clause of § 2255(e) only if the prisoner shows that the § 2255 remedy is "inadequate or ineffective to test the legality of his detention." § 2255(e). Glover has not made such a showing, as he has not established that his claims are based on a retroactively applicable Supreme Court decision establishing that he was convicted of a nonexistent offense. Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
Moreover, 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 that warrants review under § 2241. Kinder v. Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000); see also Padilla, 416 F.3d at 426-27. Finally, any challenge to the denial of Glover's § 2255 motion must be raised in the Tenth Circuit, the court of appeals for the circuit in which his § 2255 proceeding was held. See 28 U.S.C. § 2253(a). Glover has not shown that he is entitled to proceed under § 2241 based on the savings clause of § 2255(e). The judgment of the district court is AFFIRMED.