UNIT ED S TAT ES COU RT OF A PP EALS 1 FOR THE SE CON D CIR CUIT 2

- - - - - - 3 August Term, 2002 4 (Argued: February 20, 2003 Decided: June 26, 2003) 5 Docket No. 02-2224 6

_________________________________________________________ 7 MELV

IN PO IND EXTER, 8 Petitioner-Appellant , 9
- v. - 10 JOHN NASH, Warden, 11 Respondent-Appellee
. 12

_________________________________________________________ 13 Before: OAKES, KEARSE, and B.D. PARKER, JR., Circuit Judges
. 14 Appeal from a judgment of theUnited States District Court for the Northern District 15 of

New York, Law

rence E. Kahn , Judge , dismissing for lack of jurisdiction the 28 U.S.C. § 2241 16 pe titi onfiled by petitioner, a f ederal prisoner who was convicted and se ntenced in the District of 17 Connectic

ut, whose present

petition challenged

his conviction and se

ntence, and who ha

d previou sly 18 filed a motion under 28 U.S.C. § 2255 and had not obta ined appr oval to file a second or successive 19 motion under that section. 20 Affirmed. 21 CHE RYLJ. STURM, Chadds Ford, Pennsylvania, for Petitio ner 22 Appellant
. 23 BARBAR A D. COTTRELL , Senior Litigation Counsel, Albany, New 24 York (J ose ph A. Pavone, United States Attorney for the Northern 25 District of New Y ork , Charles E. Roberts, Assistant United States 26 At to rn ey, Albany, New York, on the brief), for Respondent-Appellee
. 27- NEXTRECORD -

KEARSE, Circu it J udge : 1 Petitioner Melvi n Poindext er, a federal prisoner who was convi cted in the United States 2 District

Court for the District of Connecticut of narcotics offenses and se ntenced as a career of

fender, 3 appeals

froma judgment of the United States District Court for the Northern District of New York, 4 Lawrence

E. Kahn, Judge , dismissing his petition for habeas corpus under 28 U.S.C. § 2241 which 5 alleged

chiefly (1) that P oindexter

receiv ed ineff

ective a ssistance

of counse l at trial, (2) that h is 6 sentence violates Apprendi v. New Jersey , 530 U.S. 466 (2000), and the International Covenant on 7 Civil and Political Rights, 999 U.N.T.S. 171 (Dec. 16, 1966) ("I CCPR" or "Covenant"), and (3) that 8 he is "actually innoc ent" with respect to career of fender status. The district court ruled that 9 Poinde xter 's p etition was more properly an application under 28 U.S.C. § 2255, rather than under 10 § 2241; that the petition would be a second or successive § 2255 application, for which f iling 11 permission fromthe court of appeals was required; and that such pe rmission had not been received. 12 Ac co rd in gl y, the court transferred the application for § 2255 relief to this Court for consideration of 13 whether

to gran t leave to file, and it otherw

ise dismissedthe petition for lack of jurisdiction. On 14 appeal, Poindexter argues principally that the cour t had jurisdiction under § 2241 because adequa te 15 relief

is unavailable to him under § 2255 and because he asserte d a claim of actualinnocence. For the 16
reasons

that follow, we disa

gree a nd affir m the judg

ment. 17- NEXTRECORD - I. BACKGROUND 1

The following account of the proceeding s inv olvi ng P oindexter prior to his present 2 applicationis taken from his present petition a nd from United States v. Fullwood , 86 F.3d 27 (2d Cir.) 3 (" PoindexterI "), cert. denied , 519 U.S. 985 (1996), which, on direct ap peal, affirm ed Poi ndex ter's 4 conviction. 5

A. The Pr ior P roceed ings 6 In1995, following a jury trial in the District of

Connectic

ut, Poindexter was convicted 7 of

possession of

cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and conspiracy 8 to distribute cocaine, in violation of 21 U.S.C. § 846. In conformity with the then-prevailing practice, 9 t he quantity

of coca ine that the gove

rnment c ontended

was involved in Poinde

xter's of fense s wa s 10 neither

allege d in

the indictment nor f

ound by the jury . The distr

ict cour t, in calcul ating P oind exte r's 11 sentence under

the Sentencing Guidelines ("Guidelines") , found that the quantity of coca

ine involved 12 in his offe

nses exce eded 20 k

ilogra ms, givin g him a base offense level of 34. The court also found 13 that, in light of three of his prior convictions, to wit, ass a ult with a firearm, sale of narcotics, and 14 possessionof narcotics, Poindexter should be classified as a career off ender, w hich incr

eased hi s 15 offense

level to 37 and placed him in criminal history c ategory VI, see Guideline s § 4B1.1. The court 16 sentenced

him, within the Guidelines recommended range, to, inter ali a , a prison term of 360 mont

hs. 17 Poindexterappeale d his convi ction to thi s Court, contendingthat the district court had 18 erred i

n various suppress ion and ev

identiar y r ulings. A ll of Poindexter's contentions were rejected; 19 his convicti on was affirmed, see Poindexter I , 86 F.3d at 29-32; and the Supreme Court denied 20 certiorari in 1996. 21- NEXTRECORD - In1997, Poind

exter file d in

the District of Connecticut a pro semotion under 28 U.S.C. 1 § 2255 to vacate his conviction. He alleged that hi s sentenc e was ille gal, tha t stateme nts used a gainst 2 him

at trial had been coerced, that he was denied due pr ocess, a nd th at he received ineffective 3 assistance from his trial counsel. That § 2255 m otio n was denied. The district court denied 4 Poindex ter

a certificate of appealability , as did this Court, see United States v. Poindexter , N o. 98

- 5 2014 (2d Cir. Nov. 19, 1998), cert. denied , 526 U.S. 1094 (1999). 6

B. The Present Application 7 I nMay 2001, repr esented by c ounsel, Poindexter filed his present applicat ion in th e 8 Northern

District of New York, sty ling it a petition pursuant to 28 U.S.C. §§ 2241 and 2243 ("the 9 Petition"). The Pe titi on all eged th at Po index ter's sentence is being unlawfully "executed" because (1) 10 he received ineffective assistanc e of coun sel when his trial a ttorney failed to advise hi m to plead

guilty 11 inorder to secure a more lenient sentenc e; (2 ) the sentenc e was ca lculated in violation of his rig

hts 12 under Apprendi and in violation of Articles 9, 14, and 15 of the ICCPR by denying him due process , 13 equal protection, and the benefit of a subsequent law (referring to Apprendi ) that lig

htened the penalt

y 14 for his offense; and (3) he is "actua lly innocent" of be ing a career offe nder. 15 The government, directed by the court

to respond to the Petition, moved to dismiss on 16
numerous grounds, including (1) that the Apprendi claim lacked merit because Poindexter's sentence 17 did

not exceed the statutory max im um for his offense, given his prior criminal recor d; (2) that 18 Apprendi is no t r et ro ac ti ve an d m ay not form the basis for a collateral attack; (3) that Poindexter 19 procedu

rally default ed his Apprendi claim by not asserting it on his direc t appeal , and his present 20 petition made no su ggestion that he

could mee

t the cau se-and-

prejudic e test in order to ex cuse his 21 default ; (4 ) t ha t t he Pe ti ti on wa s u nt im el y, having been made more than four years after P oind exte r's 22- NEXTRECORD -

convictionbecame

final upon the Supre

me Court' s 1996 den

ia l of certio rari following his direct 1 appeal, and more than three y ears after the running of the a pplicable statute of limitations; and (5) that 2 the district c ourt lacked juris diction to e ntertain the pres ent petiti on. As to the jurisdic tional poin

t, the 3 government

contended that the Petition was improperly filed under § 2241 and should be construed 4 as a motion under 28 U.S.C. § 2255 because it challenged Poindexter's conviction and his sentence 5
as imposed; the government argued that the district cour t lacked jurisdictionto entertain such a § 2255 6 motion because

Poindexter had filed a prior § 2255 motion that was denied on its merits, and he had 7 notobtained the requisite court of appeals authorization for the filing of a second or succ essive § 2255 8 motion. 9 The gover nment's motion was

refer red to Ma gistra te Judge D avid

E. Peebles for report 10 and

recommendation. The magistrate judge recommended

that the government's motion be granted 11 on the ground of lack of jurisdiction: 12 Becau se this petition challenges Poin dext er's conviction and resulting 13 s entence, rather than the execution of that sentence or the conditionsof hi s 14 confine ment, and represents a second or succe ssive motion brought under 15 28 U.S.C. § 2255 tochallenge his conviction and sentence without the re quired 16 court of appeal s' permission, I recommend a finding that this court lacks 17 jurisdiction in the matter. Additionally, in light of my finding that

the petition 18 inthis matter should be treated as a motion broug ht under section 2255, and 19 consideringthat a prior motion by petitioner under that

section was dismissed 20 onthe merits, I recommend that the pe tition be t ransferr ed to the Second 21 Circuit Court of A

ppeals to consider whether to grant Poindexter leave to file 22 a second or

successive petition, in which event the Second Circuit would then 23 presuma bly transfer the petit ion to the District of Connecticut, as the district 24 of con victi on and sente ncing. 25 Report

and Recommendation dated January 18, 2002, at 3. The district cour t approved and

adopted 26 the magistr

ate judg e's re

port. The Peti tio n was transferred to this Court to the extent that it sought 27 relief

within the scope of § 2255. Judgment was entered dismissing the Petition insofar as it sought 28 relief under § 2241. 29- NEXTRECORD - Foll owing the t ransfer, this Court directed Poindexter to file, on or before April 25, 1 2002, an applic ation for leave tofile a second or successive § 2255 motion. He failed to file such an 2 application, and that phase of the matter was closed. See Poindexter v. Nash , No. 02-3538 (2d Cir. 3 May 13, 2002). 4

II . DISCUSSION 5

Onthis appeal, Poindexter argues principally that his application was a proper petition 6 under

§ 2241 bec auseunder § 2 255 he ca nnot obtai nan adequate remedy

for his claims of ineffective 7 assist ance of counsel and violations of Apprendi and the ICCPR, and because his claim is one o f 8 actual in

nocenc e with re spect to c areer offende r status. We

reject h is conten tions. 9

A. The General Scope of § 2241 10 Section2241 provides ge nerally that the f ederal courtshave the

power to grant w rits 11 of

habeas c orpus, see 28 U.S.C. § 2 241(a), inbehalf of, inter alios , prisone rs who ar e "in cu stody

in 12 violation of the Constitution or laws or treaties of t he United S tates," id . § 2241(c)(3). Section 2255 13 provides in part that a federal prisoner may seek 14 rele ase[] upon the ground that the sentence was imposed in v iolation of the 15 Constitution or laws of the Unite d States, or th at the c ourt was without 16 jurisdiction to impose suchsentence, or that the sentence was in excess of the 17 maximum authorized by law, or is otherwise subject to collatera l attack. 18 28 U.S .C. § 2255 ¶ 1. Despite their overlapping language and the generality of § 2241, the two 19 sections have been const rued as "address [ing] di fferent types of claim s." Chambers v. United States , 20 106 F.3d 472, 475 (2d Cir. 1997). 21 Under § 2241, a prisoner may cha llenge the " executionof [his] 22- NEXTRECORD - sentence," id . at 474 (emphasis in original), such as calculations by the Bureau 1 of Prisons of the credit to be given for other periods of detention, or decisions 2 to deny parole , see id . at 474-75, or conditions of confinement, see , e.g. , 3 Jiminian v. Nash , 245 F.3d 144, 146 (2d Cir. 200 1); Kingsl ey v. Bureau of 4 Prisons , 937 F.2d 26, 30 n.5 (2d Cir. 1991). Section 2255, on the other hand, 5 is the prope r vehicl e when the

federa l prisone r seeks " to challe

nge the legali ty 6 of the imposition o f a sentence by a court." Chambers v. United States , 106 7 F.3d at 474 (e

mphasi s in o rigina

l). As a " gener

al rule, " when c ollatera

lly 8 attackinga senten ce on th e ground that he was convicted in violation of the 9 Constit ution or fed eral law, "a federalprisoner mu st use § 225 5." Triestman 10 v. United States , 124 F.3d. 361, 373 (2d Cir. 1997) . . . ; see also Jiminian v. 11 Nash , 245 F.3d at 146-47 ("[]§ 2255 is generally the proper ve hicle for a 12 federal prisoner's challenge to his conviction and sentence"). 13 Roccisano v. Menifee , 293 F.3d 51, 5 7 (2d Cir. 2 002). In sum, where a pe titioner "challenges the 14 constituti onality of the imposit

ion of his s entence

rather than the e xecution of

his sente nce, his§ 2241 15 petition should be construed as a motion for relief under § 2255." Hom Sui Ching v. United States , 16 298 F.3d 174, 176 (2d Cir . 2002); see , e.g. , Roccisano v. Menifee , 293 F.3d at 57; Corrao v. United 17 States , 152 F.3d 188, 191 (2d Cir. 199 8); Chambers v. United States , 106 F.3d at 474-75. 18 None of the claims asserted by Poindexter challenged the ex ecut ion of his sentence. 19 He allege d only that err ors occu rred in the events that preceded his sentencing, to wit: the fa ilure of 20 trial co un se l t o a dv is e h im to pl ea d g ui lt y; th e f in di ng of dr ug qu an ti ty b y th e c ou rt , r at he r t ha n a ju ry, 21 for purposes of sentencing; and the finding that his record qualified him to be sentenced as a career 22 offender. Plainly, these claims fall within the scope of a § 2255 motion and outside the normal scope 23 of a § 2241 petition. 24

B. Limite d Availab ility of § 2241 f

or § 2255- Typ e Claims 25 Insome very limited circumstanc es, claims that fa ll within the substantive scope of 26 § 2255 may proper ly be made

in a petition filed under

§ 2241. See , e.g. , Jiminian v. N ash , 245 F.3d 27 at 147-48 ; Triestman v. United States , 124 F.3d at 373-74, 377-78. Section 22 55 itself provides, in 28- NEXTRECORD -

pertinent part, that 1 [a]n application for a writ of habeas corpus in behalf of a prisoner who 2 is authorized to apply for re lief by motion pursuant to this section, shall not be 3 entertained if it appears that . . . the court which sentenced him . . . has denied 4 him relief, unless it a lso appears that the remedy by motion is inadequate or 5 ineffective to test the legality of his detention
. 6 28 U.S.C. § 225 5 ¶ 5 (emphasis added). Where relief through § 2255 is unavailable as a procedura l 7 matter, and "'the failure to allow for col later al revi ew wou ld rai se seri ous co nsti tuti onal q uesti ons,'" 8 Jiminian v. Nash , 245 F.3d at 147 ( quot ing Triestman v. United States , 124 F.3d at 377), we have 9 interpreted

§ 2255's exception

for "inadequa

te or ineffective" remedy

as making an "exception to the 10 general

rule that a federal prisoner must use § 2255 instead of see king a writ

of habeas corpus under 11 § 2241," Triestman v. United States , 124 F.3d at 373. 12 Inorder to fit within this exception authorizing a petition under § 2241 for a claim that 13 is within the

substantive scope o f § 2255, it is i nsuffic ient si mply

that reli ef under

§ 2255 is 14 unavaila

ble because, for example, a prior motion under § 2255 has been made and a successive motion 15 under

that section is disallowed by the cour t of appeals under

the gat ekeepin g provis ions of 28 U .S.C. 16 §§ 2244 and 2255, see , e.g. , Roccisano v. Menifee , 293 F.3d at 57; Jiminian v. N ash , 245 F.3d at 147- 17 48, or because § 2255 relief is un a vailable because the Supreme Court has not made a new rule of 18 constitutional lawretroactive to cases on collateral review, see Love v. Menifee , No. 01-2192, 2003 19 U.S. App. Lexis 11813, at *10-*12 (2d Cir. June 16, 2003) (no serious constitutional question raised 20 by unavailability of retroactive § 2255 relief onan Apprendi claim). T he applic ation not only

must 21 show that relief is procedurally unavailable under § 22 5 5, but also must assert a claim of actual 22 innocence that (a) is "prov[able] . . . on the existing record," and (b) "c ould not have effectively [been] 23 raised

. . . at an earlier

time." Triestman v. United States , 124 F.3d at 363. Poindexter meets only the 24 unavaila

bility element o f this test
. 25- NEXTRECORD - 1. The Present Unavailability of Relief Under § 2255 1 It

is clear that a § 2255 motion is now unavailable to Poindexter. He made a § 2255 2 motion unsuccessfully in 1997. After the transfer of his present applica tion to this Court, he did not, 3 despite

notice f rom this Cou

rt, pursue a

request for authorization t

o file a second § 2255 motion. And 4 at

oral ar gument o f this app eal, his a ttorney conced ed that " there sim

ply are no grounds under which 5 Mr. Poindexter could qualify for leave to file a second or successive 2255 motion"--an apt concession. 6 Permission to file a second or successive motion may properly be

granted only

as to a claim that relies 7 either

on "a new r

ule of constitutional law, made retroactive to cases on collater al review by

the 8 Supreme Court," 28 U.S.C. § 2255 ¶ 8(2), or on 9 newly discovered evidence that, if proven and viewed in light of

the evidence 10 as a whole, would be sufficient to establish by clear and convincing evidence 11 th at no re as on ab le fa ct fi nd er wo ul d h av e f ou nd th e m ov an t g ui lt y of th e 12 offense , 13 id . ¶ 8(1) ( emphasis added). None of Po indexter' s presen t claims me ets this te st. 14 His Apprendi claim is not one th at may be raise d in a second or successive § 2255 15 motion, because the Supreme Court has not made Apprendi retroactive to cases on collateral review. 16 See , e.g. , F orbes v . United States , 262 F .3d 14 3, 146 (2d Ci r. 200 1) (per curiam ). And altho ugh 17 Poindexterclaims tha t the I CCPR requir

es that Apprendi be applied retroactively , that contentionis 18 meritless for at least two reasons. Article 15, on which he relies, states that "'[i]f, subsequent to the 19 commission of

th e o ff en se , p ro vi si on is ma de by law for t he imp osition of a lighter penalty , the 20 offender

shall benefit thereby ." 999 U.N.T.S. at 177. But Apprendi does not le ssen the p enalty for 21 any

offense; it merely

specifies that the factual prerequisites for imposition of a sentenc e that exceeds 22 the statutory

maximum must be alleged in the indictment and found by the jury. Hence , the Covenant 23 does no t a pp ly. Further, even if Apprendi were deemed to be a law within the scope of Article 15, the 24 Covenant

would afford no basis fo r relief, for "A rtic les 1 through 27 of the Covenant [a]re not 25- NEXTRECORD -

self-executing, see 138 Cong.Rec. S4784 (daily ed. Apr. 2, 1992), and could not there fore give rise 1 to privately enf

orceable rights under United States law." De La Rosa v. United States , 32 F.3d 8, 10 2 n.1 (1st Cir. 1994) (per curiam), cert. denied , 514 U.S. 1 049 (1995 ); see also Wesson v. United States 3 Penitentiary , 305 F.3d 343, 348 (5th Cir. 2002) (per curiam) (habeasrelief not available for allege d 4 violati on of Cove nant provisions as to which Congress has not allowed private enforc ement), cert. 5 denied , 123 S. Ct. 1374 (2003). 6 Nor does Poind

exter's ineffe ctive-a ssistance -of-co unsel cla im meet the

require ments 7 of

§§ 2244 and 2255 for

leave to file a second or successive motion, for the c ontrolling constitutional 8 principles are not new, the factual predicates do not appea r to be newly discove

red, and Poindexter 9 present s no facts that could have led to a finding that he was not g uilty of his present narc otics 10 offense s. His conte ntion is tha

t trial co unsel w as ineffective (1 ) in failing to inform him (a) of the 11 govern ment's filing of an information pursuant to 21 U.S.C. § 851 to subject him to increased 12 penalties by reason of his prior c onviction s, and (b) of the exist

ence of a plea of fer, an d (2) in failing 13 to advise hi

m to acce pt the ple a offer . Poindexter could have asser

ted this c l aim in his first § 2255 14 motion, for the record indicates that he was aware of all of the facts underly ing this claim before the 15 end

of his trial, see Massaro v. United States , No. 01-1559, 2003 U.S. LEXI S 3243, at *10 (Apr. 23, 16 2003) ("an ineffective-assistance -of-counsel claim may be brought in a c ollat eral proceeding under 17 § 2255, whether or not the petitioner could have raised the claim on d irect appeal"). The Petition 18 stated

that "[a]t trial, Poindexter's attorney" stated that he had not discussed with Poindexter "the 851 19 information" (Petition at 13), and that "the government withdrew the plea offer" on the recor

d on "the 20 third

day of trial" ( id .). Thus, Poindexter appare ntly knew the releva nt facts a t trial, a nd he obvi ously 21 knewthrou ghout that hi s atto rney did n ot adv ise hi m to p lead gu ilty. Acc ordin gly, Poin dext er's 22 ineffective-assistance-of-counse l claim could have been made in his first § 2255 motion. 23- NEXTRECORD - Inany event, Poindexter's claim of ineffective assistance of counsel was not based on 1 any

viable assertion that he is innocent of the instant offenses. Although his Petition asserted that he 2
was "actua

lly i nnocent o f violatin

g th e provis ions [of] 21 U .S.C. 841(b )(1)(A ) becau se no single 3 cocaine transaction was in excess of five kilograms of cocaine" ( Petition at 8), he makes no claim that 4 he did not distribute cocaine in violation of § 841(a)(1), one of the two offense s of which he was 5 convicted. Nor does he claim that he did not

engage in conspirac

y to distribute cocaine in violation 6 of

21 U.S.C. § 846, his other offense of conviction, see PoindexterI , 86 F.3d at 28, which focuses on 7 the aggrega

te quantity of narc otics involved in the conspiratorial enterprise, see , e.g. , United States 8 v. Patterson , 947 F.2d 635, 635 (2d Cir. 1991). 9 Further, a petitioner who "does not seek an opportunity to prove his innocence but 10 instead

seeks a benefit he a sserts he would have received if he had pleade d guilty," simply is not 11 making a claim of innocence. Roccisano v. Menifee , 293 F.3d at 57. Here, Poindexter asserted that 12 had

he been properly

advised by counsel " his sentence would have been substantially lower than the 13 360 month sent ence tha t was impos ed." (Pe

tition at 14 .) He mak

es no cla im that he was actua

lly 14 innocent

of narcotics trafficking--and cer tainly makes no claim that such innocence could be shown 15 fromthe existing record. To the contrar y, he argu es that c ounsel sho

uld have " give[n hi

m] the bene fit 16 of

professional advice that the plea offer should be ta ken because the government's evi dence was 17 overwhelming." (Poindexter brief on appea l at 22; se e also Petition at 12 ("In this case, the 18 prose cutio n's case was airtight. I t had an audio tape, the testimony of aninfor mant, and Po index ter's 19 statements to the police.").) 20

2. The Claim of "Actual Innoc ence" of Career Of fender Status 21 Instead of claiming innocence of

the drug trafficking that was the subject of his present 22- NEXTRECORD -

c onviction s, Poindexter

claims tha

t he is inno cent of b eing a c areer offende r--the G uideline s facto r 1 that

increased his sentence. He relies on Spence v. Superintendent, Great Meadow Correc tional 2 Fa cility , 219 F. 3d 162 (2d Cir. 2000) (" Spence "), for the proposition that "the question of actual 3 innocence is whether the 'constitutional error undermined the acc uracy of the guilt or sentencing 4 determi

natio n'" (Poi ndex ter br ief on appeal at 17 ( quot ing Spence , 219 F.3d at 171 (with internal 5 quotation marks om itted))), and on United States v. Maybec k , 23 F.3d 888 (4th Cir. 1994) 6 (" Maybeck "), for the proposition that "misclassification as [a] career offende r is equivale

nt to a cla im 7 of

actual innocence" (Poindexter bri ef on ap peal at 1 7). Poindexter's r eliance on these c ases is 8 misplaced, for hisargument is a technical one that neither a sserts a claim of constitutional dimension 9
nor

constitutes a claim of "actual innocence" as that term is used either in those cases or in habeas 10 ju ri sp ru de nc e g en er al ly. 11 T he Supreme Court, exploring the term "actual innocence" in the c ourse of determin in g 12 whether

a habeas claim may

be ente rtained

despite the applic ant's pr ior defa ult and his

inability to 13 make the caus e-and- prejudic e showing

that would

excuse the

default , has made clear that "the concept 14 of

'actual[]' . . . innocence" is "distinct from[the concep t of] 'legal[ ]' innocence. " Smith v. Murray , 15 477 U.S. 527, 537 (1986). "In the conte xt of a noncapital case, the concept of 'ac tual inno cence' i s 16 easy

to grasp," Sawyer v. Whitley , 505 U.S. 333, 341 (1992), because it normally means simply that 17 the defe

ndant did n

ot commit the crime , see id .; Embrey v. Hershberger , 131 F.3d 739, 740-41 (8 th 18 Cir. 1997) (en banc), cert. denied , 525 U.S. 8 28 (1998) ; United States v. Richards , 5 F.3d 1369, 1371 19 (10th

Cir. 1993). And in a c apital case wher e the con tention is n

ot that the defenda nt did not c ommit 20 the crime but rather that the penalty imposed on him should no t be death, the concept of "actual 21 innocence" refer s t o clear and convincing evidence that no reasonable juror would have found the 22 existence of aggra v ating circumstance or other conditions that, under the a pplicable law, made the 23- NEXTRECORD -

petitioner eligible for the death penalty
. See Sawyer v. Whitley , 505 U.S. at 336, 344-45. 1 Maybeck and Spence , on which Poindexter relies, applied the concept of "actual 2 innocence" to th e penal ty phase o f nonc apita l offe nses, granti ng c ollatera l r elief to applicants who 3 showed

that they in fact ha

d not committed the crimes on which the calculation or imposition o f their 4 sentences was based. In Maybeck, the court noted that "[t]here is no dispute . . . that [the d efenda nt] 5
was innocent of one of the convictions used to de termine that he was a career offe nder and he was 6 improper

ly sentenced as such." 23 F.3d at 894 (e mphasis added). In Spence , the state court had 7 deferred

sentencing Spencefor a robbery conviction, promising that if he d id no t in t he int erim e ngage 8 inany furthe

r misc onduct or get rearrested, he would be treated as a y

outhful-offender and given a 9 sentence of probation. During that interim period, Spence was"rearrested and cha rged with another 10
ro bb er y, which it tu rns out he did not com

mit . But before that was determined, the hea vy sentence 11 he was warned about had already been imposed and [was] being served" when he pe titioned for 12 habeas. 219 F. 3d at 1 65 (em phasi s adde d). Th is Co urt co nstru ed the state court 's sentencingpromise 13
as being conditioned on the absence of any " miscond uct" by

Spence, rather

than on an

"arre st 14 unilater

ally initiated by the police," id . at 167, i.e. , an event over which Spence, if he had done nothing 15 wrong, would have had no cont rol. A s Spen

ce " clea rly and c onvin

cingly demo nstra

te[d]" that he was 16 "actua

lly innocent of the act

for which he recei ved an enhanced s entence," id . at 172, we directed the 17 district c ourt to grant his habeas petition and to order his release from prison because the crime tha t 18 led the state court to send him to prison was one that he had not committed. 19 Thesecases provide no support for Poindexter's assertion of actual innocence. An a dult 20 defendant whose instant offense is a drug felony is to be

sentenc ed as a c areer

offende r if he "has at 21 least

two prior felony c onvictions of either a cri me of violence or a controlled substance offense." 22 Guidelines § 4B1.1. For these purposes, a crime of violence includes an offense that is punishable by 23- NEXTRECORD -

a prison term exceeding one y ear and that h as as an element the use of physical force against the 1 person

of another. See Guideline s § 4B1.2. Poindexter's instant offenses were narc otics felonies; and 2 he was sente

nced as a caree r offen der on the basi s of thre e of his prior convictions, to wit, two for 3 narcotics offenses and one for assault with a firearm. Poindexter makes no suggestion whatever that 4 he did not actually commit those three prior crimes. Nor does he sugge st thatthose prior crimes were 5 notfelonie s punishab le by more tha n one y ear's i mprisonment or that they that were not crimes of 6 violence or contr olled substance of

fenses. Rather, he merely makes the legalargume

nt that be cause 7 he was sentenced for those prior as sault and

narcoti cs felon

ies on the same date, his three convictions 8 should

have been treated asa single conviction, and he thus should be deemed not to have the requis ite 9 number

of prior convictions

( i.e. , "at least two") for care er offender status. This plainly does not assert 10
a

constitutional claim. And even as a simpl e challenge to the application of the Guidelines--a 11 chall enge that has b een def aulted be cause

it could have been

made o n dire ct app eal fro m Poi ndex ter's 12 convicti on--itsmerit is qu estio nable , for t here is no rep resent ation that P oind exte r's prior convictions 13 met

the Guidelines conditions under which multiple convictions may be dee med a single conviction 14 for

purposes of avoiding career of fender status. See , e.g. , Guidelines § 4A1.2Applicat io n Note 3 15 (even

if prior crimes have been consolidated for sentencing, they

are not to be so telescoped if they 16
were separated by an intervening arrest). But wha tever the merit of the contention that the Guidelines 17
were misapplied in the treatment of Poindexter's three undisputed prior convictions, his claim that the 18 three crimes should have been treated as one crime is not cognizable as a claim of actual innocenc e. 19

C. Poindexter's Procedural Contentions 20 Fi na ll y, we note Poindexter's cont en tions that t he distric t court c ould not pr

operly 21 dismiss his § 2241 Petition for lack of jurisdiction because "the plain language of Section 2241 invests 22- NEXTRECORD -

the district c ourt with t

he power to hear a case" (Poindexte

r brief on appea

l at 19; see id . at 26-27), 1 and that t

he gove rnment c ould not pr

operly move to dismiss his Petition for lack of jurisdiction but 2
was require d to make some sort of factual presentation in response to his Petition ( see Poindexter brief 3 on appea

l at 17, 23- 25). The se conte ntions ar e meritle ss. 4 The district court has no power to entertain a seco nd or successive § 2255 motion 5
un less the appr opriate court of appeals has authorized the f

iling of that motion

in the distr

ict cour t. 6
see 28 U.S.C. § 2 244(b)( 3); Nelson v. United States , 115 F.3d

136, 136 (2d Cir. 199 7) (per curiam) 7 (vacating

"for lack of jurisdi ction" a

district c ourt judg

ment that d

ealt with a successive § 2255 motion 8 "on its merits" wherethis Court had not granted authorization for the filing of that motion). Where 9 the court de

termines that an a pplication raises

only claims wh

ich are properl y brought under

§ 2255, 10 that

the applicant has filed

a prior § 2255 motion which was dealt with on the merits, and that no 11 authorizationfrom the c ourt of a ppealshas been obtained

as "mandated by § 2244( b)(3)," Liriano v. 12 United

States , 95 F.3d 119, 123 (2d Cir. 1996) (per curiam), the district court must transfer the motion 13 to this Court, see , e.g. , id .; Torres v. Senkowski , 316 F.3d 147, 151 (2d Cir. 2003) (same with respect 14 to stat e prisoner's petition under § 2254). And, except to the limited extent discussed above (wit h 15 respect

to a not-previousl

y- asserta ble claim of actual innocence that is provable on the record), § 2241 16 does not give the court authority to enter tain unde r that sec tion an ap plication that is with

inthe scope 17 of

§ 2255 and that cannot be entertained without court of appeals authoriza tion. The d

istrict c ourt in 18 the present case properly ruled that the claims asserted by Poindexter were within the scope of § 2255 19 and transferred thePetition to this Court so that we could entertain an application by Poindexter for 20 leave to file a second or suc c essive § 2 255 motion. As there were no claims tha

t were pr operly 21 brought under § 2241, the court did not err in refusing to entertain the Petition under that section. 22 Nor was ther e impropr iety in the governmen

t's motion to dismiss the Petition. "[A]ny 23- NEXTRECORD -

party . . . at any

stage o f the pro ceeding s[] may raise the question o f whethe

r th e court has sub

ject 1 matter

jurisdict ion." United Food & Commercial Workers Union, L ocal 919 v. Cent ermark Properties 2 Meriden

Square, Inc. , 30 F.3d 298, 301 (2d Cir. 19 94) (inte rnal quot ation mar ks omitted) . Ind

eed, if 3 the parties do not call a jurisdict ional def ect to the attention of the co urt, the c ourt has t

he duty to raise 4 it sua sponte
. See , e.g. , United States v. Cotton , 535 U.S. 6 25, 630 (2 002); see Louisville & N ashville 5 R.R. Co. v. Mottley , 211 U.S. 149, 152 (1908). Further, the habeas corpus statutes provide that the 6
courtin which a habeas p etition is f

iled may "direct[] the resp ondent to show caus e why th e wri t 7 should

not be granted," 28 U.S.C. § 2243 ¶ 1, a nd such a response may well raise only legal 8 argume

nts, see , e.g. , id . § 2243 ¶ 5 (discussing procedure where "the application for the writ and the 9 return

present onl y is sues o f law") ; see also Mitchell v . Follett e , 358 F.2d 922, 928 (2d Cir. 1966) 10 ("[W]hen [the state ] considers the alle gations [in a habe as petiti on u nder 28 U.S.C. § 2241] 11 insufficient, it is entitled to attempt to dispose of the challenge to detention as a matter of law." ). 12 CONCLUSIO N 13

We have considered all of Poindexter's contentions on this appeal and have found them 14 to be without merit. The judgment of the district court is affirmed. 15