     Case: 10-41213 Document: 00511465991 Page: 1 Date Filed: 05/04/2011




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

                                                 FILED
                                                                             May 4, 2011
                                     No. 10-41213
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

ROBERT L. MCNEAL,

                                                   Petitioner - Appellant

v.

M. MARTIN, Warden,

                                                   Respondent - Appellee


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 1:10-CV-446


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Proceeding pro se and in forma pauperis, Robert L. McNeal, federal
prisoner # 06212-089, appeals the dismissal of his 28 U.S.C. § 2241 petition
challenging his 40-month sentence following a guilty-plea conviction for escape
from a federal prison camp. McNeal contends: he is actually innocent of his
career-offender sentence enhancement under Sentencing Guideline § 4B1.1
because his escape conviction is not a crime of violence in the light of Chambers
v. United States, 555 U.S. 122 (2009); and he is entitled to § 2241 relief under the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-41213 Document: 00511465991 Page: 2 Date Filed: 05/04/2011

                                  No. 10-41213

savings clause of 28 U.S.C. § 2255(e). In an appeal from the denial of habeas
relief, rulings on legal issues are reviewed de novo; findings of fact, for clear
error. Padilla v. United States, 416 F.3d 424, 425 (5th Cir. 2005).
      “Section 2255 provides the primary means of collaterally attacking a
federal sentence” based upon alleged errors that occurred at, or prior to,
sentencing. Id. at 425-26 (citations and internal quotation marks omitted).
McNeal’s § 2241 petition will be considered only if he establishes that § 2255 is
inadequate or ineffective to test the legality of his detention. Id. at 426. McNeal
bears the burden of establishing § 2255 as an inadequate or ineffective remedy.
See id. This requires his showing: (1) his claim “is based on a retroactively
applicable Supreme Court decision which establishes that the petitioner may
have been convicted of a nonexistent offense”; and (2) his claim “was foreclosed
by circuit law at the time when the claim should have been raised in the
petitioner’s trial, appeal, or first § 2255 motion”. Reyes-Requena v. United
States, 243 F.3d 893, 904 (5th Cir. 2001).
      McNeal’s claim fails the first prong of the Reyes-Requena test because he
can not establish that his conviction for escape from a federal prison camp was
for a nonexistent offense. 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 warranting review under § 2241. E.g., Kinder v.
Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000); see also Padilla, 416 F.3d at 427
(contrasting claims challenging sentencing and claims challenging conviction).
      AFFIRMED.




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