### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-60851 Summary Calendar

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 # 3 0 7 0 4-004, moves to proceed in forma pauperis (IFP) to appeal the di s m i s s al a s frivolous of his 28 U.S.C. § 2241 petit i o n challenging his conviction for possession with intent to distribute cocaine, cocaine base, and marijuana. In that petition, Davi s a r gu ed that his criminal history score had been incorrectly calculated at his original sentencing. The district court denied Davis leave to proceed IFP on appeal , c ertifying that the appeal was not taken in good faith b e c a u se Davis had not shown the 28 U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D August 11, 20 11 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-60851 Document: 00511568622 Page: 1 Date Filed: 08/11/2011No. 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 on ly i f h e 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 § 225 5 m o tion. Reyes-Requena v. United States , 243 F.3d 893, 904 (5th Cir. 2001). Davis a r gu e s t hat he meets the savings clause requirements because he

was unable to successfully challenge the calculation of his criminal history score
u ntil the enactment of Amendment 706 of the Sentencing Guidelines. D avi s ’ 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 § 2 241 review, as he is not asserting his innocence of the c rime of conviction. See Kinder , 222 F.3d at 213. Davis’s alternative argument that the actual innocence and miscarriage of justic e s t an dards 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 recogni z e 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 di d n o t err in determining that it lacked j u ri sdiction. See § 2255(e); see also Solsona v. Warden, F.C.I. , 821 F.2d 1 1 2 9 , 1132 (5th Cir. 1987).
2 Case: 10-60851 Document: 00511568622 Page: 2 Date Filed: 08/11/2011No. 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. 1 997); 5 T H C I R
. R. 42.2. IFP DENIED; APPEAL DISMISSED.

3 Case: 10-60851 Document: 00511568622 Page: 3 Date Filed: 08/11/2011