1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 - - - - - -

4 August Term, 2002

5 (Argued: February 20, 2003 Decided: June 26, 2003)

6 Docket No. 02-2224

7 _________________________________________________________

8 MELVIN POINDEXTER,

9 Petitioner-Appellant,

10 - v. -

11 JOHN NASH, Warden,

12 Respondent-Appellee.

13 _________________________________________________________

14 Before: OAKES, KEARSE, and B.D. PARKER, JR., Circuit Judges.

15 Appeal from a judgment of the United States District Court for the Northern District

16 of New York, Lawrence E. Kahn, Judge, dismissing for lack of jurisdiction the 28 U.S.C. § 2241

17 petition filed by petitioner, a federal prisoner who was convicted and sentenced in the District of

18 Connecticut, whose present petition challenged his conviction and sentence, and who had previously

19 filed a motion under 28 U.S.C. § 2255 and had not obtained approval to file a second or successive

20 motion under that section.

21 Affirmed.

22 CHERYL J. STURM, Chadds Ford, Pennsylvania, for Petitioner23 Appellant.

24 BARBARA D. COTTRELL, Senior Litigation Counsel, Albany, New

25 York (Joseph A. Pavone, United States Attorney for the Northern

26 District of New York, Charles E. Roberts, Assistant United States

27 Attorney, Albany, New York, on the brief), for Respondent-Appellee.
- NEXTRECORD -

1 KEARSE, Circuit Judge:

2 Petitioner Melvin Poindexter, a federalprisonerwhowas convicted in the United States

3 District Court for the District of Connecticut of narcotics offenses and sentenced as a career offender,

4 appeals from a judgment of the United States District Court for the Northern District of New York,

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

6 alleged chiefly (1) that Poindexter received ineffective assistance of counsel at trial, (2) that his

7 sentence violates Apprendi v. New Jersey, 530 U.S. 466 (2000), and the International Covenant on

8 Civil and Political Rights, 999 U.N.T.S. 171 (Dec. 16, 1966) ("ICCPR" or "Covenant"), and (3) that

9 he is "actually innocent" with respect to career offender status. The district court ruled that

10 Poindexter's petition was more properly an application under 28 U.S.C. § 2255, rather than under

11 § 2241; that the petition would be a second or successive § 2255 application, for which filing

12 permission from the court of appeals was required; and that such permission had not been received.

13 Accordingly, the court transferred the application for § 2255 relief to this Court for consideration of

14 whether to grant leave to file, and it otherwise dismissed the petition for lack of jurisdiction. On

15 appeal, Poindexter argues principally that the court had jurisdiction under § 2241 because adequate

16 relief is unavailable to him under § 2255 and because he asserted a claim of actual innocence. For the

17 reasons that follow, we disagree and affirm the judgment.
- NEXTRECORD -

1 I. BACKGROUND

2 The following account of the proceedings involving Poindexter prior to his present

3 application is taken from his present petition and from United States v. Fullwood, 86 F.3d 27 (2d Cir.)

4 ("Poindexter I"), cert. denied, 519 U.S. 985 (1996), which, on direct appeal, affirmed Poindexter's

5 conviction.

6 A. The Prior Proceedings

7 In 1995, following a jury trial in the District of Connecticut, Poindexter was convicted

8 of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and conspiracy

9 to distribute cocaine, in violation of 21 U.S.C. § 846. In conformity with the then-prevailing practice,

10 the quantity of cocaine that the government contended was involved in Poindexter's offenses was

11 neither alleged in the indictment nor found by the jury. The district court, in calculating Poindexter's

12 sentence under the Sentencing Guidelines ("Guidelines"), found that the quantity of cocaine involved

13 in his offenses exceeded 20 kilograms, giving him a base offense level of 34. The court also found

14 that, in light of three of his prior convictions, to wit, assault with a firearm, sale of narcotics, and

15 possession of narcotics, Poindexter should be classified as a career offender, which increased his

16 offense level to 37 and placed him in criminal history category VI, see Guidelines § 4B1.1. The court

17 sentenced him, within the Guidelines recommended range, to, inter alia, a prison term of 360 months.

18 Poindexter appealed his conviction to this Court, contending that the district court had

19 erred in various suppression and evidentiary rulings. All of Poindexter's contentions were rejected;

20 his conviction was affirmed, see Poindexter I, 86 F.3d at 29-32; and the Supreme Court denied

21 certiorari in 1996.
- NEXTRECORD -

1 In 1997, Poindexter filed in the District of Connecticut a pro se motion under 28 U.S.C.

2 § 2255 to vacate his conviction. He alleged that his sentence was illegal, that statements used against

3 him at trial had been coerced, that he was denied due process, and that he received ineffective

4 assistance from his trial counsel. That § 2255 motion was denied. The district court denied

5 Poindexter a certificate of appealability, as did this Court, see United States v. Poindexter, No. 98-

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

7 B. The Present Application

8 In May 2001, represented by counsel, Poindexter filed his present application in the

9 Northern District of New York, styling it a petition pursuant to 28 U.S.C. §§ 2241 and 2243 ("the

10 Petition"). The Petition alleged that Poindexter's sentence is being unlawfully "executed" because (1)

11 he received ineffective assistance of counsel when his trial attorney failed to advise him to plead guilty

12 in order to secure a more lenient sentence; (2) the sentence was calculated in violation of his rights

13 under Apprendi and in violation of Articles 9, 14, and 15 of the ICCPR by denying him due process,

14 equal protection, and the benefit of a subsequent law (referring to Apprendi) that lightened the penalty

15 for his offense; and (3) he is "actually innocent" of being a career offender.

16 The government, directed by the court to respond to the Petition, moved to dismiss on

17 numerous grounds, including (1) that the Apprendi claim lacked merit because Poindexter's sentence

18 did not exceed the statutory maximum for his offense, given his prior criminal record; (2) that

19 Apprendi is not retroactive and may not form the basis for a collateral attack; (3) that Poindexter

20 procedurally defaulted his Apprendi claim by not asserting it on his direct appeal, and his present

21 petition made no suggestion that he could meet the cause-and-prejudice test in order to excuse his

22 default; (4) that the Petition was untimely, having been made more than four years after Poindexter's
- NEXTRECORD -

1 conviction became final upon the Supreme Court's 1996 denial of certiorari following his direct

2 appeal, and more than three years after the running of the applicable statute of limitations; and (5) that

3 the district court lacked jurisdiction to entertain the present petition. As to the jurisdictional point, the

4 government contended that the Petition was improperly filed under § 2241 and should be construed

5 as a motion under 28 U.S.C. § 2255 because it challenged Poindexter's conviction and his sentence

6 as imposed; the government argued that the district court lacked jurisdiction to entertain such a § 2255

7 motion because Poindexter had filed a prior § 2255 motion that was denied on its merits, and he had

8 not obtained the requisite court of appeals authorization for the filing of a second or successive § 2255

9 motion.

10 The government's motion was referred to Magistrate Judge David E. Peebles for report

11 and recommendation. The magistrate judge recommended that the government's motion be granted

12 on the ground of lack of jurisdiction:

13 Because this petition challenges Poindexter's conviction and resulting

14 sentence, rather than the execution of that sentence or the conditions of his

15 confinement, and represents a second or successive motion brought under

16 28 U.S.C. § 2255 to challenge his conviction and sentence without the required

17 court of appeals' permission, I recommend a finding that this court lacks

18 jurisdiction in the matter. Additionally, in light of my finding that the petition

19 in this matter should be treated as a motion brought under section 2255, and

20 considering that a prior motion by petitioner under that section was dismissed

21 on the merits, I recommend that the petition be transferred to the Second

22 Circuit Court of Appeals to consider whether to grant Poindexter leave to file

23 a second or successive petition, in which event the Second Circuit would then

24 presumably transfer the petition to the District of Connecticut, as the district

25 of conviction and sentencing.

26 Report and Recommendation dated January 18, 2002, at 3. The district court approved and adopted

27 the magistrate judge's report. The Petition was transferred to this Court to the extent that it sought

28 relief within the scope of § 2255. Judgment was entered dismissing the Petition insofar as it sought

29 relief under § 2241.
- NEXTRECORD -

1 Following the transfer, this Court directed Poindexter to file, on or before April 25,

2 2002, an application for leave to file a second or successive § 2255 motion. He failed to file such an

3 application, and that phase of the matter was closed. See Poindexter v. Nash, No. 02-3538 (2d Cir.

4 May 13, 2002).

5 II. DISCUSSION

6 On this appeal, Poindexter argues principally that his application was a proper petition

7 under § 2241 because under § 2255 he cannot obtain an adequate remedy for his claims of ineffective

8 assistance of counsel and violations of Apprendi and the ICCPR, and because his claim is one of

9 actual innocence with respect to career offender status. We reject his contentions.

10 A. The General Scope of § 2241

11 Section 2241 provides generally that the federal courts have the power to grant writs

12 of habeas corpus, see 28 U.S.C. § 2241(a), in behalf of, inter alios, prisoners who are "in custody in

13 violation of the Constitution or laws or treaties of the United States," id. § 2241(c)(3). Section 2255

14 provides in part that a federal prisoner may seek

15 release[] upon the ground that the sentence was imposed in violation of the

16 Constitution or laws of the United States, or that the court was without

17 jurisdiction to impose such sentence, or that the sentence was in excess of the

18 maximum authorized by law, or is otherwise subject to collateral attack.

19 28 U.S.C. § 2255 ¶ 1. Despite their overlapping language and the generality of § 2241, the two

20 sections have been construed as "address[ing] different types of claims." Chambers v. United States,

21 106 F.3d 472, 475 (2d Cir. 1997).

22 Under § 2241, a prisoner may challenge the "execution of [his]
- NEXTRECORD -

1 sentence," id. at 474 (emphasis in original), such as calculations by the Bureau

2 of Prisons of the credit to be given for other periods of detention, or decisions

3 to deny parole, see id. at 474-75, or conditions of confinement, see, e.g.,

4 Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001); Kingsley v. Bureau of

5 Prisons, 937 F.2d 26, 30 n.5 (2d Cir. 1991). Section 2255, on the other hand,

6 is the proper vehicle when the federal prisoner seeks "to challenge the legality

7 of the imposition of a sentence by a court." Chambers v. United States, 106

8 F.3d at 474 (emphasis in original). As a "general rule," when collaterally

9 attacking a sentence on the ground that he was convicted in violation of the

10 Constitution or federal law, "a federal prisoner must use § 2255." Triestman

11 v. United States, 124 F.3d. 361, 373 (2d Cir. 1997) . . . ; see also Jiminian v.

12 Nash, 245 F.3d at 146-47 ("[]§ 2255 is generally the proper vehicle for a

13 federal prisoner's challenge to his conviction and sentence").

14 Roccisano v. Menifee, 293 F.3d 51, 57 (2d Cir. 2002). In sum, where a petitioner "challenges the

15 constitutionality of the imposition of his sentence rather than the execution of his sentence, his § 2241

16 petition should be construed as a motion for relief under § 2255." Hom Sui Ching v. United States,

17 298 F.3d 174, 176 (2d Cir. 2002); see, e.g., Roccisano v. Menifee, 293 F.3d at 57; Corrao v. United

18 States, 152 F.3d 188, 191 (2d Cir. 1998); Chambers v. United States, 106 F.3d at 474-75.

19 None of the claims asserted by Poindexter challenged the execution of his sentence.

20 He alleged only that errors occurred in the events that preceded his sentencing, to wit: the failure of

21 trial counsel to advise him to plead guilty; the finding of drug quantity by the court, rather than a jury,

22 for purposes of sentencing; and the finding that his record qualified him to be sentenced as a career

23 offender. Plainly, these claims fall within the scope of a § 2255 motion and outside the normal scope

24 of a § 2241 petition.

25 B. Limited Availability of § 2241 for § 2255-Type Claims

26 In some very limited circumstances, claims that fall within the substantive scope of

27 § 2255 may properly be made in a petition filed under § 2241. See, e.g., Jiminian v. Nash, 245 F.3d

28 at 147-48; Triestman v. United States, 124 F.3d at 373-74, 377-78. Section 2255 itself provides, in
- NEXTRECORD -

1 pertinent part, that

2 [a]n application for a writ of habeas corpus in behalf of a prisoner who

3 is authorized to apply for relief by motion pursuant to this section, shall not be

4 entertained if it appears that . . . the court which sentenced him . . . has denied

5 him relief, unless it also appears that the remedy by motion is inadequate or

6 ineffective to test the legality of his detention.

7 28 U.S.C. § 2255 ¶ 5 (emphasis added). Where relief through § 2255 is unavailable as a procedural

8 matter, and "'the failure to allow for collateral review would raise serious constitutional questions,'"

9 Jiminian v. Nash, 245 F.3d at 147 (quoting Triestman v. United States, 124 F.3d at 377), we have

10 interpreted § 2255's exception for "inadequate or ineffective" remedy as making an "exception to the

11 general rule that a federal prisoner must use § 2255 instead of seeking a writ of habeas corpus under

12 § 2241," Triestman v. United States, 124 F.3d at 373.

13 In order to fit within this exception authorizing a petition under § 2241 for a claim that

14 is within the substantive scope of § 2255, it is insufficient simply that relief under § 2255 is

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

16 under that section is disallowed by the court of appeals under the gatekeeping provisions of 28 U.S.C.

17 §§ 2244 and 2255, see, e.g., Roccisano v. Menifee, 293 F.3d at 57; Jiminian v. Nash, 245 F.3d at 147-

18 48, or because § 2255 relief is unavailable because the Supreme Court has not made a new rule of

19 constitutional law retroactive to cases on collateral review, see Love v. Menifee, No. 01-2192, 2003

20 U.S. App. Lexis 11813, at *10-*12 (2d Cir. June 16, 2003) (no serious constitutional question raised

21 by unavailability of retroactive § 2255 relief on an Apprendi claim). The application not only must

22 show that relief is procedurally unavailable under § 2255, but also must assert a claim of actual

23 innocence that (a) is "prov[able] . . . on the existing record," and (b) "could not have effectively [been]

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

25 unavailability element of this test.
- NEXTRECORD -

1 1. The Present Unavailability of Relief Under § 2255

2 It is clear that a § 2255 motion is now unavailable to Poindexter. He made a § 2255

3 motion unsuccessfully in 1997. After the transfer of his present application to this Court, he did not,

4 despite notice from this Court, pursue a request for authorization to file a second § 2255 motion. And

5 at oral argument of this appeal, his attorney conceded that "there simply are no grounds under which

6 Mr. Poindexter could qualify for leave to file a second or successive 2255 motion"--an apt concession.

7 Permission to file a second or successive motion may properly be granted only as to a claim that relies

8 either on "a new rule of constitutional law, made retroactive to cases on collateral review by the

9 Supreme Court," 28 U.S.C. § 2255 ¶ 8(2), or on 

10 newly discovered evidence that, if proven and viewed in light of the evidence

11 as a whole, would be sufficient to establish by clear and convincing evidence

12 that no reasonable factfinder would have found the movant guilty of the

13 offense,

14 id. ¶ 8(1) (emphasis added). None of Poindexter's present claims meets this test.

15 His Apprendi claim is not one that may be raised in a second or successive § 2255

16 motion, because the Supreme Court has not made Apprendi retroactive to cases on collateral review.

17 See, e.g., Forbes v. United States, 262 F.3d 143, 146 (2d Cir. 2001) (per curiam). And although

18 Poindexter claims that the ICCPR requires that Apprendi be applied retroactively, that contention is

19 meritless for at least two reasons. Article 15, on which he relies, states that "'[i]f, subsequent to the

20 commission of the offense, provision is made by law for the imposition of a lighter penalty, the

21 offender shall benefit thereby." 999 U.N.T.S. at 177. But Apprendi does not lessen the penalty for

22 any offense; it merely specifies that the factual prerequisites for imposition of a sentence that exceeds

23 the statutory maximum must be alleged in the indictment and found by the jury. Hence, the Covenant

24 does not apply. Further, even if Apprendi were deemed to be a law within the scope of Article 15, the

25 Covenant would afford no basis for relief, for "Articles 1 through 27 of the Covenant [a]re not
- NEXTRECORD -

1 self-executing, see 138 Cong.Rec. S4784 (daily ed. Apr. 2, 1992), and could not therefore give rise

2 to privately enforceable rights under United States law." De La Rosa v. United States, 32 F.3d 8, 10

3 n.1 (1st Cir. 1994) (per curiam), cert. denied, 514 U.S. 1049 (1995); see also Wesson v. United States

4 Penitentiary, 305 F.3d 343, 348 (5th Cir. 2002) (per curiam) (habeas relief not available for alleged

5 violation of Covenant provisions as to which Congress has not allowed private enforcement), cert.

6 denied, 123 S. Ct. 1374 (2003).

7 Nor does Poindexter's ineffective-assistance-of-counsel claim meet the requirements

8 of §§ 2244 and 2255 for leave to file a second or successive motion, for the controlling constitutional

9 principles are not new, the factual predicates do not appear to be newly discovered, and Poindexter

10 presents no facts that could have led to a finding that he was not guilty of his present narcotics

11 offenses. His contention is that trial counsel was ineffective (1) in failing to inform him (a) of the

12 government's filing of an information pursuant to 21 U.S.C. § 851 to subject him to increased

13 penalties by reason of his prior convictions, and (b) of the existence of a plea offer, and (2) in failing

14 to advise him to accept the plea offer. Poindexter could have asserted this claim in his first § 2255

15 motion, for the record indicates that he was aware of all of the facts underlying this claim before the

16 end of his trial, see Massaro v. United States, No. 01-1559, 2003 U.S. LEXIS 3243, at *10 (Apr. 23,

17 2003) ("an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under

18 § 2255, whether or not the petitioner could have raised the claim on direct appeal"). The Petition

19 stated that "[a]t trial, Poindexter's attorney" stated that he had not discussed with Poindexter "the 851

20 information" (Petition at 13), and that "the government withdrew the plea offer" on the record on "the

21 third day of trial" (id.). Thus, Poindexter apparently knew the relevant facts at trial, and he obviously

22 knew throughout that his attorney did not advise him to plead guilty. Accordingly, Poindexter's

23 ineffective-assistance-of-counsel claim could have been made in his first § 2255 motion.
- NEXTRECORD -

1 In any event, Poindexter's claim of ineffective assistance of counsel was not based on

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

3 was "actually innocent of violating the provisions [of] 21 U.S.C. 841(b)(1)(A) because no single

4 cocaine transaction was in excess of five kilograms of cocaine" (Petition at 8), he makes no claim that

5 he did not distribute cocaine in violation of § 841(a)(1), one of the two offenses of which he was

6 convicted. Nor does he claim that he did not engage in conspiracy to distribute cocaine in violation

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

8 the aggregate quantity of narcotics involved in the conspiratorial enterprise, see, e.g., United States

9 v. Patterson, 947 F.2d 635, 635 (2d Cir. 1991).

10 Further, a petitioner who "does not seek an opportunity to prove his innocence but

11 instead seeks a benefit he asserts he would have received if he had pleaded guilty," simply is not

12 making a claim of innocence. Roccisano v. Menifee, 293 F.3d at 57. Here, Poindexter asserted that

13 had he been properly advised by counsel "his sentence would have been substantially lower than the

14 360 month sentence that was imposed." (Petition at 14.) He makes no claim that he was actually

15 innocent of narcotics trafficking--and certainly makes no claim that such innocence could be shown

16 from the existing record. To the contrary, he argues that counsel should have "give[n him] the benefit

17 of professional advice that the plea offer should be taken because the government's evidence was

18 overwhelming." (Poindexter brief on appeal at 22; see also Petition at 12 ("In this case, the

19 prosecution's case was airtight. It had an audio tape, the testimony of an informant, and Poindexter's

20 statements to the police.").)

21 2. The Claim of "Actual Innocence" of Career Offender Status

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

1 convictions, Poindexter claims that he is innocent of being a career offender--the Guidelines factor

2 that increased his sentence. He relies on Spence v. Superintendent, Great Meadow Correctional

3 Facility, 219 F.3d 162 (2d Cir. 2000) ("Spence"), for the proposition that "the question of actual

4 innocence is whether the 'constitutional error undermined the accuracy of the guilt or sentencing

5 determination'" (Poindexter brief on appeal at 17 (quoting Spence, 219 F.3d at 171 (with internal

6 quotation marks omitted))), and on United States v. Maybeck, 23 F.3d 888 (4th Cir. 1994)

7 ("Maybeck"), for the proposition that "misclassification as [a] career offender is equivalent to a claim

8 of actual innocence" (Poindexter brief on appeal at 17). Poindexter's reliance on these cases is

9 misplaced, for his argument is a technical one that neither asserts a claim of constitutional dimension

10 nor constitutes a claim of "actual innocence" as that term is used either in those cases or in habeas

11 jurisprudence generally.

12 The Supreme Court, exploring the term "actual innocence" in the courseof determining

13 whether a habeas claim may be entertained despite the applicant's prior default and his inability to

14 make the cause-and-prejudice showing that would excuse the default, has made clear that "the concept

15 of 'actual[]' . . . innocence" is "distinct from [the concept of] 'legal[]' innocence." Smith v. Murray,

16 477 U.S. 527, 537 (1986). "In the context of a noncapital case, the concept of 'actual innocence' is

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

18 the defendant did not commit the crime, see id.; Embrey v. Hershberger, 131 F.3d 739, 740-41 (8th

19 Cir. 1997) (en banc), cert. denied, 525 U.S. 828 (1998); United States v. Richards, 5 F.3d 1369, 1371

20 (10th Cir. 1993). And in a capital case where the contention is not that the defendant did not commit

21 the crime but rather that the penalty imposed on him should not be death, the concept of "actual

22 innocence" refers to clear and convincing evidence that no reasonable juror would have found the

23 existence of aggravating circumstance or other conditions that, under the applicable law, made the
- NEXTRECORD -

1 petitioner eligible for the death penalty. See Sawyer v. Whitley, 505 U.S. at 336, 344-45.

2 Maybeck and Spence, on which Poindexter relies, applied the concept of "actual

3 innocence" to the penalty phase of noncapital offenses, granting collateral relief to applicants who

4 showed that they in fact had not committed the crimes on which the calculation or imposition of their

5 sentences was based. In Maybeck, the court noted that "[t]here is no dispute . . . that [the defendant]

6 was innocent of one of the convictions used to determine that he was a career offender and he was

7 improperly sentenced as such." 23 F.3d at 894 (emphasis added). In Spence, the state court had

8 deferred sentencing Spence for a robbery conviction, promising that if he did not in the interim engage

9 in any further misconduct or get rearrested, he would be treated as a youthful-offender and given a

10 sentence of probation. During that interim period, Spence was "rearrested and charged with another

11 robbery, which it turns out he did not commit. But before that was determined, the heavy sentence

12 he was warned about had already been imposed and [was] being served" when he petitioned for

13 habeas. 219 F.3d at 165 (emphasis added). This Court construed the state court's sentencing promise

14 as being conditioned on the absence of any "misconduct" by Spence, rather than on an "arrest

15 unilaterally initiated by the police," id. at 167, i.e., an event over which Spence, if he had done nothing

16 wrong, would have had no control. As Spence "clearly and convincingly demonstrate[d]" that he was

17 "actually innocent of the act for which he received an enhanced sentence," id. at 172, we directed the

18 district court to grant his habeas petition and to order his release from prison because the crime that

19 led the state court to send him to prison was one that he had not committed.

20 These cases provide no support for Poindexter's assertion of actualinnocence. An adult

21 defendant whose instant offense is a drug felony is to be sentenced as a career offender if he "has at

22 least two prior felony convictions of either a crime of violence or a controlled substance offense."

23 Guidelines § 4B1.1. For these purposes, a crime of violence includes an offense that is punishable by
- NEXTRECORD -

1 a prison term exceeding one year and that has as an element the use of physical force against the

2 person of another. See Guidelines § 4B1.2. Poindexter's instant offenses were narcotics felonies; and

3 he was sentenced as a career offender on the basis of three of his prior convictions, to wit, two for

4 narcotics offenses and one for assault with a firearm. Poindexter makes no suggestion whatever that

5 he did not actually commit those three prior crimes. Nor does he suggest that those prior crimes were

6 not felonies punishable by more than one year's imprisonment or that they that were not crimes of

7 violence or controlled substance offenses. Rather, he merely makes the legal argument that because

8 he was sentenced for those prior assault and narcotics felonies on the same date, his three convictions

9 should have been treated as a single conviction, and he thus should be deemed not to have the requisite

10 number of prior convictions (i.e., "at least two") for career offender status. This plainly does not assert

11 a constitutional claim. And even as a simple challenge to the application of the Guidelines--a

12 challenge that has been defaulted because it could have been made on direct appeal from Poindexter's

13 conviction--its merit is questionable, for there is no representation that Poindexter's prior convictions

14 met the Guidelines conditions under which multiple convictions may be deemed a single conviction

15 for purposes of avoiding career offender status. See, e.g., Guidelines § 4A1.2 Application Note 3

16 (even if prior crimes have been consolidated for sentencing, they are not to be so telescoped if they

17 were separated by an intervening arrest). But whatever the merit of the contention that the Guidelines

18 were misapplied in the treatment of Poindexter's three undisputed prior convictions, his claim that the

19 three crimes should have been treated as one crime is not cognizable as a claim of actual innocence.

20 C. Poindexter's Procedural Contentions

21 Finally, we note Poindexter's contentions that the district court could not properly

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

1 the district court with the power to hear a case" (Poindexter brief on appeal at 19; see id. at 26-27),

2 and that the government could not properly move to dismiss his Petition for lack of jurisdiction but

3 was required to make some sort of factual presentation in response to his Petition (see Poindexter brief

4 on appeal at 17, 23-25). These contentions are meritless.

5 The district court has no power to entertain a second or successive § 2255 motion

6 unless the appropriate court of appeals has authorized the filing of that motion in the district court.

7 see 28 U.S.C. § 2244(b)(3); Nelson v. United States, 115 F.3d 136, 136 (2d Cir. 1997) (per curiam)

8 (vacating "for lack of jurisdiction" a district court judgment that dealt with a successive § 2255 motion

9 "on its merits" where this Court had not granted authorization for the filing of that motion). Where

10 the court determines that an application raises only claims which are properly brought under § 2255,

11 that the applicant has filed a prior § 2255 motion which was dealt with on the merits, and that no

12 authorization from the court of appeals has been obtained as "mandated by § 2244(b)(3)," Liriano v.

13 United States, 95 F.3d 119, 123 (2d Cir. 1996) (per curiam), the district court must transfer the motion

14 to this Court, see, e.g., id.; Torres v. Senkowski, 316 F.3d 147, 151 (2d Cir. 2003) (same with respect

15 to state prisoner's petition under § 2254). And, except to the limited extent discussed above (with

16 respect to a not-previously-assertable claim of actual innocence that is provable on the record), § 2241

17 does not give the court authority to entertain under that section an application that is within the scope

18 of § 2255 and that cannot be entertained without court of appeals authorization. The district court in

19 the present case properly ruled that the claims asserted by Poindexter were within the scope of § 2255

20 and transferred the Petition to this Court so that we could entertain an application by Poindexter for

21 leave to file a second or successive § 2255 motion. As there were no claims that were properly

22 brought under § 2241, the court did not err in refusing to entertain the Petition under that section.

23 Nor was there impropriety in the government's motion to dismiss the Petition. "[A]ny
- NEXTRECORD -

1 party . . . at any stage of the proceedings[] may raise the question of whether the court has subject

2 matter jurisdiction." United Food & Commercial Workers Union, Local 919 v. Centermark Properties

3 Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994) (internal quotation marks omitted). Indeed, if

4 the parties do not call a jurisdictional defect to the attention of the court, the court has the duty to raise

5 itsua sponte. See, e.g., United States v. Cotton, 535 U.S. 625, 630 (2002); see Louisville & Nashville

6 R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908). Further, the habeas corpus statutes provide that the

7 court in which a habeas petition is filed may "direct[] the respondent to show cause why the writ

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

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

10 return present only issues of law"); see also Mitchell v. Follette, 358 F.2d 922, 928 (2d Cir. 1966)

11 ("[W]hen [the state] considers the allegations [in a habeas petition under 28 U.S.C. § 2241]

12 insufficient, it is entitled to attempt to dispose of the challenge to detention as a matter of law.").

13 CONCLUSION

14 We have considered all of Poindexter's contentions on this appeal and have found them

15 to be without merit. The judgment of the district court is affirmed.