                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-6804


MICHAEL ANTHONY FARROW,

                Petitioner - Appellant,

          v.

WARDEN SARA M. REVELL,

                Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (5:12-hc-02193-FL)


Submitted:   September 25, 2013            Decided:      October 9, 2013


Before WILKINSON and      THACKER,   Circuit   Judges,    and   HAMILTON,
Senior Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Michael Anthony Farrow, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Michael       Farrow    appeals        the      district     court’s   order

dismissing         his    petition    for     a    writ     of   habeas     corpus   filed

pursuant      to    28    U.S.C.     § 2241       (2006).        Farrow    alleged   that,

following our decision in United States v. Simmons, 649 F.3d

237, 244-45 (4th Cir. 2011) (en banc), he was actually innocent

of being a felon in possession of a firearm and of being an

armed career criminal.                Farrow had previously filed a direct

appeal and a 28 U.S.C.A. § 2255 (West Supp. 2013) motion, both

of which were resolved adversely to him prior to Simmons.                                 We

affirm the district court with regard to Farrow’s challenge to

his   armed       career    criminal     status       and     vacate      and   remand   for

further consideration of his actual innocence claim.

              A federal prisoner who seeks to challenge the legality

of his conviction or sentence generally must proceed pursuant to

§ 2255, while § 2241 petitions are reserved for challenges to

the execution of the prisoner’s sentence.                        In re Vial, 115 F.3d

1192,   1194       n.5    (4th   Cir.   1997).           In    limited     circumstances,

however,      §    2255    “is     inadequate       or     ineffective      to   test    the

legality of [the] detention.”                 28 U.S.C.A. § 2255(e).             Prisoners

relying on this provision (often referred to as the “savings

clause”) may file a petition for a writ of habeas corpus in the

district of confinement pursuant to § 2241.                            In re Jones, 226

F.3d 328, 333 (4th Cir. 2000).

                                              2
              In   Jones,     we     concluded      that    a   § 2255    motion     is

inadequate or ineffective, and a § 2241 petition may be used to

test the legality of a conviction, when:

     (1) at the time of conviction, settled law of this
     circuit or the Supreme Court established the legality
     of the conviction; (2) subsequent to the prisoner’s
     direct appeal and first § 2255 motion, the substantive
     law changed such that the conduct of which the
     prisoner was convicted is deemed not to be criminal;
     and (3) the prisoner cannot satisfy the gatekeeping
     provisions of § 2255 because the new rule is not one
     of constitutional law.

Id. at 333-34.        Initially, we conclude, as the district court

did, that Farrow’s challenge to his armed career criminal status

is not cognizable in a § 2241 petition.                      See United States v.

Poole, 531 F.3d 263, 267 (4th Cir. 2008) (stating that savings

clause only preserves claims in which petitioner claims actual

innocence of convictions and not just innocence of sentencing

factor).

              However,   we       conclude   that    Farrow’s    actual       innocence

claim    is   eligible      for    consideration      pursuant    to     the    savings

clause. ∗      Circuit      law    established      the     legality     of    Farrow’s

conviction at the time it was entered.                     Subsequently, and after

Farrow had filed his direct appeal and first § 2255 motion, we

     ∗
       We offer no opinion on the merit of Farrow’s claims. The
district court did not address Farrow’s actual innocence claim,
and therefore it remains undeveloped.    We cannot conclusively
say on the record before us that Farrow is not entitled to
relief.



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decided Simmons, which we have recently held to be retroactively

applicable on collateral review.               See Miller v. United States,

___ F.3d ___, __, 2013 WL 4441547, at *5 (4th Cir. Aug. 21,

2013).     Finally, the gatekeeping provisions in § 2255(h) prevent

Farrow from filing a § 2255 motion to take advantage of the

change     in    the   law     because       Simmons     is     not    a    rule    of

constitutional law announced by the Supreme Court.                            Farrow’s

actual innocence claim thus satisfies the three prongs of the

Jones test and is, therefore, cognizable in a § 2241 petition.

            Accordingly,       we   affirm     the     district       court    as   to

Farrow’s challenge to his armed career criminal status, and we

vacate and remand for consideration of Farrow’s actual innocence

claim.     We grant Farrow leave to proceed in forma pauperis on

appeal.     We dispense with oral argument because the facts and

legal    contentions     are    adequately      presented       in    the     material

before    this   court   and    argument      will     not    aid    the   decisional

process.

                                                                AFFIRMED IN PART,
                                                                 VACATED IN PART,
                                                                     AND REMANDED




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