IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 # 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

United States Court of Appeals

Fifth Circuit

F I L E D

August 11, 2011

Lyle W. Cayce

Clerk

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). 

2

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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.

3

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