Poindexter v. Nash

• Decision Date: 26 June 2003
• Docket Number: Docket No. 02-2224.
• Citation: 333 F.3d 372
• Parties: Melvin POINDEXTER, Petitioner-Appellant, v. John NASH, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

333 F.3d 372

Melvin POINDEXTER, Petitioner-Appellant, v. John NASH, Warden, Respondent-Appellee.

Docket No. 02-2224.

United States Court of Appeals, Second Circuit.

Argued: February 20, 2003.

Decided: June 26, 2003.

COPYRIGHT MATERIAL OMITTED

Cheryl J. Sturm, Chadds Ford, Pennsylvania, for Petitioner-Appellant.

Barbara D. Cottrell, Senior Litigation Counsel, Albany, New York (Joseph A. Pavone, United States Attorney for the Northern District of New York, Charles E. Roberts, Assistant United States Attorney, Albany, New York, on the brief), for Respondent-Appellee.

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

KEARSE, Circuit Judge.

Petitioner Melvin Poindexter, a federal prisoner who was convicted in the United States District Court for the District of Connecticut of narcotics offenses and sentenced as a career offender, appeals from a judgment of the United States District Court for the Northern District of New York, Lawrence E. Kahn, Judge, dismissing his petition for habeas corpus under 28 U.S.C. § 2241 which alleged chiefly (1) that Poindexter received ineffective assistance of counsel at trial, (2) that his sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (Dec. 16, 1966) ("ICCPR" or "Covenant"), and (3) that he is "actually innocent" with respect to career offender status. The district court ruled that Poindexter's petition was more properly an application under 28 U.S.C. § 2255, rather than under § 2241; that the petition would be a second or successive § 2255 application, for which filing permission from the court of appeals was required; and that such permission had not been received. Accordingly, the court transferred the application for § 2255 relief to this Court for consideration of whether to grant leave to file, and it otherwise dismissed the petition for lack of jurisdiction. On appeal, Poindexter argues principally that the court had jurisdiction under § 2241 because adequate relief is unavailable to him under § 2255 and because he asserted a claim of actual innocence. For the reasons that follow, we disagree and affirm the judgment.

I. BACKGROUND

The following account of the proceedings involving Poindexter prior to his present application is taken from his present petition and from United States v. Fullwood, 86 F.3d 27 (2d Cir.) ("Poindexter I"), cert. denied, 519 U.S. 985, 117 S.Ct. 442, 136 L.Ed.2d 338 (1996), which, on direct appeal, affirmed Poindexter's conviction.

A. The Prior Proceedings

In 1995, following a jury trial in the District of Connecticut, Poindexter was convicted of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846. In conformity with the then-prevailing practice, the quantity of cocaine that the government contended was involved in Poindexter's offenses was neither alleged in the indictment nor found by the jury. The district court, in calculating Poindexter's sentence under the Sentencing Guidelines ("Guidelines"), found that the quantity of cocaine involved in his offenses exceeded 20 kilograms, giving him a base offense level of 34. The court also found that, in light of three of his prior convictions, to wit, assault with a firearm, sale of narcotics, and possession of narcotics, Poindexter should be classified as a career offender, which increased his offense level to 37 and placed him in criminal history category VI, see Guidelines § 4B1.1. The court sentenced him, within the Guidelines recommended range, to, inter alia, a prison term of 360 months.

Poindexter appealed his conviction to this Court, contending that the district court had erred in various suppression and evidentiary rulings. All of Poindexter's contentions were rejected; his conviction was affirmed, see Poindexter I, 86 F.3d at 29-32; and the Supreme Court denied certiorari in 1996.

In 1997, Poindexter filed in the District of Connecticut a pro se motion under 28 U.S.C. § 2255 to vacate his conviction. He alleged that his sentence was illegal, that statements used against him at trial had been coerced, that he was denied due process, and that he received ineffective assistance from his trial counsel. That § 2255 motion was denied. The district court denied Poindexter a certificate of appealability as did this Court, see United States v. Poindexter, No. 98-2014 (2d Cir. Nov. 19, 1998), cert. denied, 526 U.S. 1094, 119 S.Ct. 1512, 143 L.Ed.2d 664 (1999).

B. The Present Application

In May 2001, represented by counsel, Poindexter filed his present application in the Northern District of New York, styling it a petition pursuant to 28 U.S.C. §§ 2241 and 2243 ("the Petition"). The Petition alleged that Poindexter's sentence is being unlawfully "executed" because (1) he received ineffective assistance of counsel when his trial attorney failed to advise him to plead guilty in order to secure a more lenient sentence; (2) the sentence was calculated in violation of his rights under Apprendi and in violation of Articles 9, 14, and 15 of the ICCPR by denying him due process, equal protection, and the benefit of a subsequent law (referring to Apprendi) that lightened the penalty for his offense; and (3) he is "actually innocent" of being a career offender.

The government, directed by the court to respond to the Petition, moved to dismiss on numerous grounds, including (1) that the Apprendi claim lacked merit because Poindexter's sentence did not exceed the statutory maximum for his offense, given his prior criminal record; (2) that Apprendi is not retroactive and may not form the basis for a collateral attack; (3) that Poindexter procedurally defaulted his Apprendi claim by not asserting it on his direct appeal, and his present petition made no suggestion that he could meet the cause-and-prejudice test in order to excuse his default; (4) that the Petition was untimely, having been made more than four years after Poindexter's conviction became final upon the Supreme Court's 1996 denial of certiorari following his direct appeal, and more than three years after the running of the applicable statute of limitations; and (5) that the district court lacked jurisdiction to entertain the present petition. As to the jurisdictional point, the government contended that the Petition was improperly filed under § 2241 and should be construed as a motion under 28 U.S.C. § 2255 because it challenged Poindexter's conviction and his sentence as imposed; the government argued that the district court lacked jurisdiction to entertain such a § 2255 motion because Poindexter had filed a prior § 2255 motion that was denied on its merits, and he had not obtained the requisite court of appeals authorization for the filing of a second or successive § 2255 motion.

The government's motion was referred to Magistrate Judge David E. Peebles for report and recommendation. The magistrate judge recommended that the government's motion be granted on the ground of lack of jurisdiction:

Because this petition challenges Poindexter's conviction and resulting sentence, rather than the execution of that sentence or the conditions of his confinement, and represents a second or successive motion brought under 28 U.S.C. § 2255 to challenge his conviction and sentence without the required court of appeals' permission, I recommend a finding that this court lacks jurisdiction in the matter. Additionally, in light of my finding that the petition in this matter should be treated as a motion brought under section 2255, and considering that a prior motion by petitioner under that section was dismissed on the merits, I recommend that the petition be transferred to the Second Circuit Court of Appeals to consider whether to grant Poindexter leave to file a second or successive petition, in which event the Second Circuit would then presumably transfer the petition to the District of Connecticut, as the district of conviction and sentencing. Report and Recommendation dated January 18, 2002, at 3. The district court approved and adopted the magistrate judge's report. The Petition was transferred to this Court to the extent that it sought relief within the scope of § 2255. Judgment was entered dismissing the Petition insofar as it sought relief under § 2241.

Following the transfer, this Court directed Poindexter to file, on or before April 25, 2002, an application for leave to file a second or successive § 2255 motion. He failed to file such an application, and that phase of the matter was closed. See Poindexter v. Nash, No. 02-3538 (2d Cir. May 13, 2002).

II. DISCUSSION

On this appeal, Poindexter argues principally that his application was a proper petition under § 2241 because under § 2255 he cannot obtain an adequate remedy for his claims of ineffective assistance of counsel and violations of Apprendi and the ICCPR, and because his claim is one of actual innocence with respect to career offender status. We reject his contentions.

A. The General Scope of § 2241

Section 2241 provides generally that the federal courts have the power to grant writs of habeas corpus, see 28 U.S.C. § 2241(a), in behalf of, inter alios, prisoners who are "in custody in violation of the Constitution or laws or treaties of the United States," id. § 2241(c)(3). Section 2255 provides in part that a federal prisoner may seek

release[] upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.

28 U.S.C. § 2255 ¶ 1. Despite their overlapping language and the generality of § 2241, the two sections have been construed as "address[ing] different types of claims." Chambers v. United States, 106 F.3d...