                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 12a0785n.06
                                                                                             FILED
                                            No. 10-5376
                                                                                         Jul 20, 2012
                           UNITED STATES COURT OF APPEALS
                                                                                  LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT

MARCUS DEANGELO JONES, aka Marcus                      )
DeAngelo Lee ,                                         )
                                                       )
        Petitioner-Appellant,                          )
                                                       )
v.                                                     )
                                                       )       ON APPEAL FROM THE
JUAN D. CASTILLO, Warden,                              )       UNITED STATES DISTRICT
                                                       )       COURT FOR THE WESTERN
        Respondent-Appellee,                           )       DISTRICT OF TENNESSEE
                                                       )
and                                                    )
                                                       )
FEDERAL BUREAU OF PRISONS,                             )
                                                       )
        Respondent.                                    )




        BEFORE: BOGGS and WHITE, Circuit Judges; BLACK, District Judge.*


        PER CURIAM. Marcus DeAngelo Jones, aka Marcus DeAngelo Lee, a federal prisoner,

appeals a district court order dismissing his petition for a writ of habeas corpus, filed pursuant to 28

U.S.C. § 2241.

        In 2000, a jury convicted Jones of two counts of being a felon in possession of a firearm and

making false statements to acquire a firearm. He was sentenced as an armed career criminal to 327

months of imprisonment. His conviction was affirmed on direct appeal. United States v. Jones, 266

F.3d 804 (8th Cir. 2001). He filed a motion to vacate his sentence, pursuant to 28 U.S.C. § 2255,



       *
        The Honorable Timothy S. Black, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 10-5376
Jones v. Castillo

alleging ineffective assistance of counsel, as a result of which one of his convictions of being a felon

in possession of a firearm was vacated. United States v. Jones, 403 F.3d 604 (8th Cir. 2005).

        In 2009, Jones filed this petition for a writ of habeas corpus in the Western District of

Tennessee, where he was incarcerated. He argued that new law showed that he was actually innocent

of being an armed career criminal, that the government suppressed evidence of his innocence, and

that he was not receiving adequate medical care. He subsequently abandoned the third claim. The

district court held that Jones was not entitled to bring his claims under § 2241 and dismissed the

petition. A motion for reconsideration was also denied.

        On appeal, Jones reasserts his claims that he is entitled to relief under § 2241 because he is

actually innocent of being an armed career criminal and because the government withheld evidence

that would establish his innocence of the underlying offense.

        We review the dismissal of a petition under § 2241 de novo. Charles v. Chandler, 180 F.3d

753, 755 (6th Cir. 1999). Generally, a federal prisoner may challenge his conviction and the

imposition of his sentence only by filing a motion to vacate sentence under § 2255 in the court where

he was convicted, and may challenge the execution of his sentence under § 2241 in the district where

he is incarcerated. Id. at 755-56. An exception to this rule allows a federal prisoner to challenge his

conviction and the imposition of sentence under § 2241 where the remedy under § 2255 is shown

to be inadequate and ineffective. Id. The fact that a prisoner has previously filed a § 2255 motion

and is barred from filing another such motion does not make that remedy inadequate and ineffective.

Id. at 756. Only where an intervening change in the law establishes the prisoner’s actual innocence

is he permitted to challenge his conviction under § 2241. United States v. Peterman, 249 F.3d 458,

462 (6th Cir. 2001).

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No. 10-5376
Jones v. Castillo

       Jones argues that the exception applies to his first claim because the Supreme Court narrowed

the definition of what constitutes a violent felony for purposes of determining armed career criminal

status in Begay v. United States, 553 U.S. 137 (2008). Under this new law, he argues, he is actually

innocent of being an armed career criminal. However, he does not argue that he is actually innocent

of being a felon in possession of a firearm. Claims alleging “actual innocence” of a sentencing

enhancement cannot be raised under § 2241. Raymer v. Barron, 82 F. App’x 431, 432 (6th Cir.

2003); Kinder v. Purdy, 222 F.3d 209, 212-14 (5th Cir. 2000) (dismissing petition raising claim of

“actual innocence” of career-offender enhancement); In re Davenport, 147 F.3d 605, 609-10 (7th

Cir. 1998) (holding challenge to armed-career-criminal enhancement improper under § 2241). Jones

relies on Gilbert v. United States, 640 F.3d 1293 (11th Cir. 2011) (en banc), cert. denied, 132 S. Ct.

1001 (2012), for the proposition that § 2241 may be used to challenge a sentence that is longer than

the statutory maximum. However, Gilbert did not address that issue, which was not presented, and

rather held that claims of miscalculation under the sentencing guidelines could not be raised under

§ 2241. Id. at 1312 (“for claims of sentence error, at least where the statutory maximum was not

exceeded, the point where finality holds its own against error correction is reached not later than the

end of the first round of collateral review.”).

       Jones also argues that the exception applies to his claim that the government withheld

evidence that would have established his actual innocence. Because this claim is not premised on

an intervening change in the law that establishes his actual innocence, Jones cannot bring it under

§ 2241. Moreover, the burden is on the petitioner to establish that the remedy under § 2255 is

inadequate or ineffective. Martin v. Perez, 319 F.3d 799, 804-05 (6th Cir. 2003). Here, Jones has

not alleged that he has attempted to raise this claim of new evidence establishing his innocence in

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No. 10-5376
Jones v. Castillo

the court where he was convicted. Accepting his claim as accurate, it appears that he could raise this

issue in the Eighth Circuit in a motion to authorize the filing of a successive motion to vacate.

       For the above reasons, the district court’s dismissal of this petition is affirmed.




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