Victor Baxter v. Usp Pollock

441 F. App'x 257

Opinion

PER CURIAM: *

In 2003, a jury found Victor G. Baxter, federal prisoner # 26713-004, guilty of one count of distributing five grams or more of crack and one count of possessing with intent to distribute cocaine, and he received concurrent 360-month prison terms. He was found to be a career offender and his sentence was enhanced in part on the basis of a trio of 1999 guilty plea convictions in state court for drug offenses for which he received a 174-day prison sentence. He moves this court for a certifí-cate of appealability (COA) to appeal the district court’s decision to dismiss his 28 U.S.C. § 2254 petition and 28 U.S.C. § 2241 application for lack of jurisdiction.

The district court determined that it did not have jurisdiction to consider Baxter’s § 2254 claim on the basis that Baxter was no longer in custody on that conviction. Baxter does not address this issue in his brief to this court; accordingly, he has abandoned it, and it will not be considered. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir.1999).

As for Baxter’s claims brought under § 2241, he is not required to obtain a COA before appealing the district court’s decision. See Padilla v. United States, 416 F.3d 424, 425 (5th Cir.2005). Because the issue of whether the district court erred in dismissing the § 2241 application is resolved by Baxter’s submissions to this court and the record, further briefing is unnecessary. See Clark v. Williams, 693 F.2d 381, 381-82 (5th Cir.1982).

Baxter contends that he was actually innocent of being a career offender when he was sentenced in his federal case. However, a claim of actual innocence of a career offender enhancement is not a claim of actual innocence of the offense of conviction and thus does not fall within the savings clause of § 2255(e) and is not cogniza-

ble under § 2241. Kinder v. Purdy, 222 F.3d 209, 213-14 (5th Cir.2000); see also Padilla, 416 F.3d at 426-27 (holding that a challenge to the validity of an enhanced sentence did not fall under the § 2255 savings clause).

Accordingly, Baxter’s motion for a COA regarding his § 2254 petition is DENIED. His motion for a COA regarding his § 2241 application is DENIED as unnecessary. The judgment of the district court is AFFIRMED.

* 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.