     Case: 10-60851     Document: 00511568622         Page: 1     Date Filed: 08/11/2011




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

                                                                            FILED
                                                                          August 11, 2011
                                     No. 10-60851
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

MARLIN DAVIS,

                                                  Petitioner-Appellant

v.

BRUCE PEARSON,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 5:10-CV-18


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Marlin Davis, federal prisoner # 30704-004, moves to proceed in forma
pauperis (IFP) to appeal the dismissal as frivolous of his 28 U.S.C. § 2241
petition challenging his conviction for possession with intent to distribute
cocaine, cocaine base, and marijuana. In that petition, Davis argued that his
criminal history score had been incorrectly calculated at his original sentencing.
The district court denied Davis leave to proceed IFP on appeal, certifying that
the appeal was not taken in good faith because Davis had not shown the 28

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 10-60851

U.S.C. § 2255 remedy to be inadequate. Our review is de novo. Kinder v. Purdy,
222 F.3d 209, 212 (5th Cir. 2000).
      Davis can proceed via § 2241 only if he shows the § 2255 remedy is
inadequate by demonstrating under the savings clause that his claim (i) is based
on a retroactively applicable Supreme Court decision which established that he
may have been convicted of a nonexistent offense and (ii) was foreclosed by
circuit law at the time when the claim should have been raised in his trial, direct
appeal, or first § 2255 motion. Reyes-Requena v. United States, 243 F.3d 893,
904 (5th Cir. 2001).
      Davis argues that he meets the savings clause requirements because he
was unable to successfully challenge the calculation of his criminal history score
until the enactment of Amendment 706 of the Sentencing Guidelines. Davis’s
claim that his criminal history score was incorrectly calculated, however, is not
based on a retroactively applicable Supreme Court decision establishing that he
was convicted of a nonexistent offense and, further, the claim was not foreclosed
by the Eleventh Circuit at the time of his direct appeal. See Garland v. Roy, 615
F.3d 391, 397-98 (5th Cir. 2010).       Moreover, Davis’s argument of “actual
innocence” relates to the propriety of his sentence and, as such, is not the type
of argument that warrants § 2241 review, as he is not asserting his innocence
of the crime of conviction. See Kinder, 222 F.3d at 213. Davis’s alternative
argument that the actual innocence and miscarriage of justice standards provide
an exception to the requirement that a petitioner must qualify under the savings
clause of § 2255 to challenge his conviction and sentence in a § 2241 petition fails
as we have consistently held that federal habeas law does not recognize a
freestanding actual innocence claim. See Foster v. Quarterman, 466 F.3d 359,
367-68 (5th Cir. 2006). Finally, to the extent Davis’s petition could be construed
as a § 2255 motion, the district court did not err in determining that it lacked
jurisdiction. See § 2255(e); see also Solsona v. Warden, F.C.I., 821 F.2d 1129,
1132 (5th Cir. 1987).

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                                  No. 10-60851

      The district court thus did not err in dismissing his petition. Davis has not
shown that his appeal involves a nonfrivolous issue. Consequently, his request
for IFP is denied, and his appeal is dismissed as frivolous. See Baugh v. Taylor,
117 F.3d 197, 202 n.24 (5th Cir. 1997); 5TH CIR. R. 42.2.
      IFP DENIED; APPEAL DISMISSED.




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