     Case: 11-40791     Document: 00511840647         Page: 1     Date Filed: 05/01/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            May 1, 2012
                                     No. 11-40791
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

WILLIE RAY COLE,

                                                  Petitioner-Appellant

v.

JODY UPTON,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:10-CV-257


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges
PER CURIAM:*
        Willie Ray Cole appeals the dismissal of a 28 U.S.C. § 2241 petition
challenging his 360-month sentence for possession of a controlled substance with
intent to distribute and being a felon in possession of a firearm. Cole previously
was unsuccessful on direct appeal and pursuant to 28 U.S.C. § 2255. Cole
argued, in the instant § 2241 petition, inter alia, that he was actually innocent
of being a career offender.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40791   Document: 00511840647      Page: 2    Date Filed: 05/01/2012

                                  No. 11-40791

      As a general rule, a federal prisoner who seeks to collaterally challenge the
legality of his conviction or sentence must file pursuant to § 2255. 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).
      Cole has not made such a showing because 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. See 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. See Kinder v. Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000); see also
Padilla, 416 F.3d at 426-27. Cole 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.




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