NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a1108n.06 No. 12-5170 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T DAVI D WI L L I AM BROWN, Petitioner-Appellant,

v. KAREN HOG STEN, Warden, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF KENTUCKY

Be fore : MARTI

N and WHI TE, Circuit J udg es; ECONOMUS, District J udg e. *

PER C URI AM. David Willi am B rown, a pro se fede ral prisone r, appe als the denia l of his petition filed under 28 U.S.C. § 2241 for a writ o f h ab ea s corpus. He also moves for leave to proce ed in forma

pauper is. I n 2002, a jury convicted Br own both of possessing stolen firea rms in violation of 18 U.S.C. § 922(j), and of possessing those firea rms afte r having been convicted of a felony in violation of 18 U.S.C. § 922(g )(1)

. The district court enhanc ed Br own’s section 922(g )(1) sentenc e beca use he had previously been convicted of at least three v i o l en t felonies. See 18 U.S.C. § 924(e)

. The district court imposed two concur rent sentenc es of 262 months of imprisonment. Br own did not appea l his convictions. I n Fe bruar

y 2011, Br own moved under 28 U.S.C. § 2255 to vacate his sentenc es. Ba sed on his rea ding of Begay v. United States , 553 U.S. 137 (2008), Br own prese nted two arg uments (1) that he was not subject to the enhanc ed penalty under 18 U.S.C. § 924(e) ; and (2) that the sentenc e

The Honor able Peter

C. Economus, United States Senior District J udg e for the Northe rn * District of Ohio, sitting by desig nation.No. 12-5170 - 2 - imposed for possessing stolen firea rms exceede d the statutory maxi mum. The district court denied the motion as untimely . Br own did not appea l the district court’s de cision. I n May 2011, Br own filed a section 2241 petition in the United States District Court for the Easter n District of Kentucky , the district court having jurisdiction over his curr ent custodian. Ag ain invoking Begay , Br own arg ued that his sentenc e violated the Fifth Amendment for two rea sons: first, beca use the prior conviction for burg lary did not constitute a “violent felony ;” and second, beca use trial counsel was ineffe ctive for failing to appea l his convictions. The district court denied the petition and Br own filed a timely appea l. We revie w t he dis trict court’s judg ment de novo. See Charles v. C handler , 180 F.3d 753, 755 (6th Cir. 1999). Br own’s section 2241 petition challeng es the validity of his conviction and sentenc e. Gene rally , a prisoner challeng ing a conviction or imposit ion of a sentenc e must file under section 2255, wher eas a prisoner mus t challeng ing the execution of the sentenc e must file under section 2241. Id. at 755–56. Br own m ay proce ed u nder section 2241 only if he properly invokes the section 2255(e) exception, or “saving s clause ,” which require s him to show that section 2255 is inadequa te or ineffe cti v e t o t es t the leg ality of his detention. Br own may avail himself of the

ex ception only by prese nting a cre dible claim of actua l innocenc e that is not cogni z ab l e i n a

succe ssive section 2255 motion. Martin v. Perez , 319 F.3d 799, 804 (6th Cir. 2003); United States

v. Peterman , 249 F.3d 458, 462 (6th Cir. 2001). Br own may also satisfy this burden by showing that there has been an intervening chang e in the law that establishes his actua l innocenc e. Peterman , 249 F.3d a t 461-62. Br own fails to invoke the exception, howeve r, beca use he does not claim that there has been

an intervening chang e in the law that establishes his a ctual innocenc e of the firea rms offe nses. Id

. at 461–62. His relianc e on Begay is misplaced, beca use it is a sentenc ing- err or case , and claims of sentenc ing e rror

may not serve a s the basis for a n actua l innocence claim. See id. at 462. We g rant the motion for leave to proce ed in forma paup eris and aff irm the district court’s order

.