Thus, as Petitioner is attacking the validity of his sentence, section 2254 applies. Gray v. Sobina , No. However, a remedy under 2254 is not inadequate or ineffective simply because the petitioner has already been denied relief, because he has been denied permission to file a second or successive motion, or because he has allowed the statute of limitations to expire. Thus, Petitioner asserts that he is actually innocent and that the court should therefore find that his claim arises under 2241 rather than 2254. Petitioner supports his assertion of actual innocence with his Motion for Leave to Supplement.
Actual innocence is the same as factual innocence.
That is, Petitioner must show that he did not commit the crime, rather than that some error in procedure occurred. This exception does not apply to those whose guilt is conceded or plain. Petitioner conceded his guilt when he pled guilty. A mere assertion of actual innocence does not change the court's analysis. Petitioner seems to allege that some error in sentencing occurred, rather than that a constitutional violation probably resulted in the conviction of one who is actually innocent.