     Case: 10-40288 Document: 00511286961 Page: 1 Date Filed: 11/08/2010




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

                                                 FILED
                                                                          November 8, 2010
                                     No. 10-40288
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

RICKY LEON DORITY,

                                                   Petitioner-Appellant

v.

WARDEN KEITH ROY,

                                                   Respondent-Appellee


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                               USDC No. 5:09-CV-57


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Ricky Leon Dority, federal prisoner # 03636-063, appeals the dismissal of
a 28 U.S.C. § 2241 petition challenging his 235-month sentence for being a felon
in possession of a firearm. Dority argues that he is actually innocent of his
sentence under the Armed Career Criminal Act because his prior conviction for
a 1984 escape from a penal institution used to enhance his sentence is not a
violent felony in light of Chambers v. United States, 129 S. Ct. 687, 693 (2009).
Dority contends that his enhanced sentence is illegal because he does not have

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40288 Document: 00511286961 Page: 2 Date Filed: 11/08/2010

                                  No. 10-40288

three previous convictions for a violent felony or a serious drug offense, and he
asserts that he is entitled to § 2241 relief under the savings clause of 28 U.S.C.
§ 2255(e).
      Section 2255 provides the primary means of collaterally attacking a
federal sentence based on errors that occurred at or prior to sentencing. Padilla
v. United States, 416 F.3d 424, 425-26 (5th Cir. 2005). We will consider Dority’s
§ 2241 petition only if he establishes that § 2255 is inadequate or ineffective to
test the legality of his detention. See id. at 426. Dority must affirmatively
establish that § 2255 is an inadequate or ineffective remedy. See id. This
requires a showing (i) that 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 (ii) that the 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).
      Dority’s claim fails the first prong of the Reyes-Requena test as he cannot
establish that his conviction for being a felon in possession of a firearm 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 that warrants review under § 2241. Kinder v. Purdy,
222 F.3d 209, 213-14 (5th Cir. 2000); see also Padilla, 416 F.3d at 426-27
(contrasting claims challenging sentencing and claims challenging a conviction).
Dority 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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