     Case: 09-31179     Document: 00511136556          Page: 1    Date Filed: 06/09/2010




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

                                                  FILED
                                                                            June 9, 2010
                                     No. 09-31179
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JAMES E BAKER,

                                                   Petitioner-Appellant

v.

MARINA MEDINA,

                                                   Respondent-Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:09-CV-1468


Before REAVLEY, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        James E. Baker, federal prisoner # 16137-064, is serving a 235-month
sentence for possession of ammunition by a felon. His conviction and sentence
were affirmed on direct appeal. United States v. Baker, 508 F.3d 1321, 1330
(10th Cir. 2007). Baker filed a petition for habeas corpus relief under 28 U.S.C.
§ 2241, arguing that the presentence report incorrectly recommended an
enhancement under the Armed Career Criminal Act since his civil liberties as
to his 1997 burglary conviction had been restored under Kansas law. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-31179    Document: 00511136556 Page: 2         Date Filed: 06/09/2010
                                 No. 09-31179

district court determined that Baker could not proceed under § 2241 because his
claim did not satisfy the requirements of the “savings clause” of 28 U.S.C.
§ 2255(e) and dismissed the § 2241 petition for lack of jurisdiction.
      Section 2255 provides the main vehicle to raise a collateral challenge to a
federal sentence. Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). Section
2255 relief is the remedy for “errors that occurred at or prior to sentencing.” Cox
v. Warden, Fed. Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990) (internal
quotation marks and citation omitted). In contrast, § 2241 is used to raise a
challenge to “the manner in which a sentence is executed.” Tolliver, 211 F.3d at
877. A petition filed under § 2241 that raises errors “that occurr[ed] at trial or
sentencing is properly construed [as arising] under § 2255.” Id. at 877-78.
Baker is challenging the factual correctness of his sentence enhancement. As
such, Baker’s claim arose at the latest during his sentencing and must be
presented under § 2255. See Cox, 911 F.2d at 1113; see also Warren v. Miles, 230
F.3d 688, 694 (5th Cir. 2000).
      If a prisoner can demonstrate that the § 2255 remedy would be
“‘inadequate or ineffective to test the legality of [the prisoner’s] detention,’” he
may be permitted to bring a habeas corpus claim pursuant to § 2241 under the
“savings clause.” See Reyes-Requena v. United States, 243 F.3d 893, 901 (5th
Cir. 2001) (quoting § 2255). “[T]he savings clause of § 2255 applies to a claim
(i) that 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 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.” Id. at
904. Baker 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.




                                         2
