In re Cecil Bradford, 660 F.3d 226 (5th Cir. 2011). · Go Syfert
In re Cecil Bradford, 660 F.3d 226 (5th Cir. 2011). Cases Citing This Book View Copy Cite
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At page 230 Review of actual innocence claims under section 224153 citing cases“a claim of actual innocence of a career offender enhancement is not a claim of actual innocence of the crime of conviction and, thus, not the type of claim that warrants review under 2241”6 citing courts quote it · 1 cautionary
  • Kaniyn Parker v. Robert Hazlewood, 2019 DNH 046 (D.N.H. 2019).published Cited "but see"
    (a claim of actual innocence of a career offender enhancement is not a claim of actual innocence of the crime of conviction and, thus, not the type of claim that warrants review under § 2241)
  • Kates v. Gonzalez, No. 3:21-cv-50065 (N.D. Ill. Oct. 11, 2022).
    (a claim of actual innocence of a career offender enhancement is not a claim of actual innocence of the crime of conviction and, thus, not the type of claim that warrants review under § 2241)
  • Melero-Aguirre v. Bergami, No. 3:20-cv-00039 (W.D. Tex. Feb. 24, 2020). 2 cites
    (a claim of actual innocence of a career offender enhancement is not a claim of actual innocence of the crime of conviction and, thus, not the type of claim that warrants review under § 2241)
  • United States v. Raymond Surratt, Jr., 797 F.3d 240 (4th Cir. 2015).published 2 cites
    ([A] claim of actual innocence of a career offender enhancement is not a claim of actual innocence of the crime of conviction and, thus, not the type of claim that warrants review under § 2241.)
  • Love v. United States, No. 1:21-cv-01021 (W.D. Tex. Nov. 19, 2021).
    Additionally, the Fifth Circuit has expressly determined that a claim of actual innocence of the career-offender sentencing enhancement “is not a claim of actual innocence of the crime of conviction and, thus, not the type of claim that wa…
  • Marion Hager v. Underwood, No. 18-10913 (5th Cir. Oct. 20, 2020).unpublished
    We have held that “a claim of actual innocence of a [sentencing] enhancement is not a claim of actual innocence of the crime of conviction and, thus, not the type of claim that warrants review under § 2241.” In re Bradford, 660 F.3d 226, 2…
  • Michael Allen v. Richard Ives, 976 F.3d 863 (9th Cir. 2020).published 2 cites
    In one set of cases, the First,3 Second,4 Third,5 Fifth,6 and 3 Damon v. United States, 732 F.3d 1, 6 (1st Cir. 2013) (“Because Damon contests only the categorization of his prior conviction as a crime of violence, he has not pleaded ‘actu…
  • Zavala v. Shultz, No. 3:17-cv-00709 (S.D. Miss. Sept. 4, 2020).
    In re Bradford v. Tamez, 660 F.3d 226, 230 (5th Cir. 2011).
  • Stine v. Watson, No. 2:19-cv-00006 (S.D. Ind. Aug. 24, 2020).
    The Fifth Circuit has concluded that "a claim of actual innocence of a career offender enhancement is not a claim of actual innocence of the crime of conviction and, thus, not the type of claim that warrants review under § 2241." In re Bra…
  • Jorge Melendez v. Ralph Hanson, No. 19-40594 (5th Cir. June 26, 2020).unpublished
    We have squarely “held that a claim of actual innocence of a career offender enhancement is not a claim of actual innocence of the crime of conviction and, thus, not the type of claim that warrants review under § 2241.” In re Bradford, 660…
Show 43 more citing cases
  • Delaine v. Shults, No. 3:16-cv-00938 (S.D. Miss. Feb. 12, 2020).
    However, Delaine argues that the Supreme Court’s ruling in Persaud v. United States, 571 U.S. 1172 (2014), supersedes established Fifth Circuit precedent that “a claim of actual innocence of a career offender enhancement is not a claim of…
  • Randy Halprin v. Lorie Davis, No. 19-70017 (5th Cir. Sept. 23, 2019).unpublished
    Bradford v. Tamez, 660 F.3d 226, 230 (5th Cir. 2011).
  • Jason Jones v. Martha Underwood, No. 18-11405 (5th Cir. Apr. 26, 2019).unpublished
    See, e.g., Shipp v. Chapa, 698 F. App’x 202, 203 (5th Cir. 2017) (collecting cases); In re Bradford, 660 F.3d 226, 230 (5th Cir. 2011); Padilla v. United States, 416 F.3d 424 , 426-27 (5th Cir. 2005).
  • Tramaine Beadles v. Warden USP Pollock, No. 17-30815 (5th Cir. July 26, 2018).unpublished
    We have repeatedly held that challenges to the validity of a sentencing enhancement do not satisfy the savings clause of § 2255(e) See, e.g., In re Bradford, 660 F.3d 226, 230 (5th Cir. 2011); Padilla, 416 F.3d at 426-27 .
  • Nicky Hignight v. Derek Edge, No. 17-40906 (5th Cir. July 10, 2018).unpublished
    See, 2 Case: 17-40906 Document: 00514548853 Page: 3 Date Filed: 07/10/2018 No. 17-40906 e.g., In re Bradford, 660 F.3d 226, 230 (5th Cir. 2011); Padilla v. United States, 416 F.3d 424, 426-27 (5th Cir. 2005); Kinder, 222 F.3d at 213-14 .
  • Dan Carmichael McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017).published 2 cites
    For example, the Fifth Circuit has refused to apply the saving clause to sentencing errors, In re Bradford, 660 F.3d 226, 230 (5th Cir. 2011), our Circuit has extended the saving clause only to sentencing errors that exceed the statutory m…
  • Mark Hill v. Bart Masters, 836 F.3d 591 (6th Cir. 2016).published
    (per cu-riam)
  • Logan v. Warden Fed. Corr. Complex Beaumont, 644 F. App'x 280 (5th Cir. 2016).unpublished
    See Padilla, 416 F.3d at 426-27 (holding that a petitioner’s claim that his terms of imprisonment exceeded the statutory maximum for the *281 charged offense did not fulfill the first prong of Reyes-Requena); see also Kinder v. Purdy, 222…
  • Vauda Shipp, Jr. v. Frank Lara, 619 F. App'x 393 (5th Cir. 2015).unpublished
    See Wesson v. U.S. Penitentiary Beaumont, TX, 305 F.3d 343, 348 (5th Cir.2002); In re Bradford, 660 F.3d 226, 230 (5th Cir.2011).
  • Bruce Oxner v. Keith Roy, 616 F. App'x 190 (5th Cir. 2015).unpublished
    See Descamps, 133 S.Ct. at 2282-84, 2293 ; In re Bradford, 660 F.3d 226, 230 (5th Cir.2011); Wesson v. U.S. Penitentiary Beaumont, 305 F.3d 343, 348 (5th Cir.2002).
  • Wayne Vinson v. C. Maiorana, 604 F. App'x 349 (5th Cir. 2015).unpublished
    In his § 2241 petition, Vinson challenges only the applicability of the ACCA sentencing enhancement. “[A] claim of actual innocence of a career offender enhancement is not a claim of actual innocence of the crime of conviction and, thus, […
  • Bruce Carneil Webster v. Charles A. Daniels, 784 F.3d 1123 (7th Cir. 2015).published 2 cites
    LEXIS 23114 (3d Cir. Dec. 9, 2014); Selby v. Scism, 453 Fed.Appx. 266, 268 (3d Cir.2011); Bradford v. Warden, 660 F.3d 226, 230 (5th Cir. 2011); Gilbert v. United States, 640 F.3d 1293, 1311-12 (11th Cir.2011) (en banc). .
  • Carnell Brown v. Ricardo Rios, 696 F.3d 638 (7th Cir. 2012).published
    See, e.g., Unthank v. Jett, 549 F.3d 534, 536 (7th Cir.2008); In re Bradford, 660 F.3d 226, 230 (5th Cir.2011) (per curiam); Kinder v. Purdy, 222 F.3d 209, 213-14 (5th Cir.2000) (per curiam).
  • Pedro Morales v. Rebecca Tamez, 467 F. App'x 285 (5th Cir. 2012).unpublished
    In re Bradford, 660 F.3d 226, 230-31 (5th Cir.2011).
  • Terry v. Martin, No. 20-60068 (5th Cir. Dec. 30, 2021).unpublished
    See In re Bradford, 660 F.3d 226, 230 (5th Cir. 2011).
  • Cassius Medlock v. Calvin Johnson, 802 F. App'x 160 (5th Cir. 2020).unpublished
    See In re Bradford, 660 F.3d 226, 230 (5th Cir. 2011); Padilla v. United States, 416 F.3d 424, 427 (5th Cir. 2005); Kinder v. Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000).
  • Rodriguez v. Wilson, No. 4:18-cv-00920 (N.D. Tex. Feb. 24, 2020).
    See Spotts v. Lara, 728 F. App’x 409 , 410 (5th Cir. 2018) (“We have repeatedly held that challenges to the validity of a sentencing enhancement do not satisfy the savings clause of § 2255(e)”) (citing Bradford, 660 F.3d at 230 , and Padil…
  • Marlon Porch v. T. Watson, No. 18-41155 (5th Cir. July 10, 2019).unpublished
    See In re Bradford, 660 F.3d 226, 230 (5th Cir. 2011); Padilla v. United States, 416 F.3d 424 , 426- 27 (5th Cir. 2005); Kinder v. Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000).
  • Kenneth Jackson v. United States, No. 18-30916 (5th Cir. June 11, 2019).unpublished
    See In re Bradford, 660 F.3d 226, 230 (5th Cir. 2011); Padilla v. United States, 416 F.3d 424 , 426- 27 (5th Cir. 2005); Kinder v. Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000).
  • Anthony Collins v. Francisco Lara, No. 18-40953 (5th Cir. June 10, 2019).unpublished
    See In re Bradford, 660 F.3d 226, 230 (5th Cir. 2011); Padilla v. United States, 416 F.3d 424, 426-27 (5th Cir. 2005); Kinder v. Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000); see also, e.g., Penson v. Warden, Fed. Corr.
  • Albert Smith, III v. Rachel Chapa, No. 18-40681 (5th Cir. May 8, 2019).unpublished
    See In re Bradford, 660 F.3d 226, 230 (5th Cir. 2011); Padilla v. United States, 416 F.3d 424 , 426- 27 (5th Cir. 2005); Kinder v. Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000).
  • Christopher Penson v. Warden, FCI Three Rivers, No. 18-40141 (5th Cir. Jan. 11, 2019).unpublished
    See In re Bradford, 660 F.3d 226, 230 (5th Cir. 2011); Padilla v. United States, 416 F.3d 424 , 426- 27 (5th Cir. 2005); Kinder v. Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000).
  • Alpidio Gonzalez v. Warden, FCI Three Rivers, No. 18-40364 (5th Cir. Jan. 9, 2019).unpublished
    See In re Bradford, 660 F.3d 226, 230 (5th Cir. 2011); Padilla v. United States, 416 2 F.3d 424 , 426-27 (5th Cir. 2005); Kinder v. Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000).
  • Edwin Marrero v. Richard Ives, 682 F.3d 1190 (9th Cir. 2012).published
  • Royce Brown v. John F. Caraway, 719 F.3d 583 (7th Cir. 2013).published
  • Ali Harden v. S. Young, 612 F. App'x 256 (5th Cir. 2015).unpublished
  • Nasir Ali v. Michael Carvajal, 654 F. App'x 172 (5th Cir. 2016).unpublished
  • United States v. Juan Delgado, 668 F. App'x 603 (5th Cir. 2016).unpublished
  • Vauda Shipp, Jr. v. Rachel Chapa, 698 F. App'x 202 (5th Cir. 2017).unpublished
  • Kristofor Kelley v. Jorge Castaneda, 711 F. App'x 243 (5th Cir. 2018).unpublished
  • Kelvin Spotts v. Frank Lara, No. 17-40883 (5th Cir. June 27, 2018).unpublished
  • Christopher Helm v. United States, No. 18-40651 (5th Cir. June 14, 2019).unpublished
  • Lamont Higgs v. Warden Wilson, No. 18-11581 (5th Cir. June 20, 2019).unpublished
  • Eric Jackson v. Calvin Johnson, No. 19-30023 (5th Cir. Aug. 9, 2019).unpublished
  • Ronnell Vallery v. Calvin Johnson, No. 18-31168 (5th Cir. Sept. 23, 2019).unpublished
  • Danny Pereda v. Calvin Johnson, No. 18-31222 (5th Cir. Oct. 7, 2019).unpublished
  • Darryl Williams v. Cheron Nash, No. 19-60326 (5th Cir. Mar. 4, 2020).unpublished
  • Dante Walker v. Calvin Johnson, No. 18-31155 (5th Cir. Apr. 21, 2020).unpublished
  • Wallace Lester v. M. Lewis, No. 19-40590 (5th Cir. Apr. 29, 2020).unpublished
  • In re Jackson, 776 F.3d 292 (5th Cir. 2015).published
  • Griffin v. Maiorana, 647 F. App'x 430 (5th Cir. 2016).unpublished
  • Parker v. FCI Berlin, No. 1:17-cv-00484 (D.N.H. Sept. 9, 2019).
  • Williams v. Wilson, No. 4:17-cv-01000 (N.D. Tex. Sept. 3, 2019).
At page 228 Determining jurisdiction over collateral order appeal13 citing cases“pursuant to the collateral order doctrine, a litigant may immediately appeal a collateral order if the order (1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a fin…”3 citing courts quote it · 11 listed here
  • United States v. Moore, No. 20-10069 (5th Cir. Feb. 11, 2021).unpublished
    The transfer order is an appealable collateral order over which this court has jurisdiction, see In re Bradford, 660 F.3d 226, 228-29 (5th Cir. 2011); a COA is not required, see United States v. Fulton, 780 F.3d 683, 688 (5th Cir. 2015).
  • United States v. Franklin, No. 20-30619 (5th Cir. Dec. 29, 2020).unpublished
    In re Bradford, 660 F.3d 226, 228-29 (5th Cir. * Pursuant to 5th Circuit Rule 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 Circuit Rul…
  • United States v. Crystal Compton, 694 F. App'x 306 (5th Cir. 2017).unpublished
    In re Bradford, 660 F.3d 226, 228-29 (5th Cir. 2011).
  • United States v. Len Davis, 629 F. App'x 613 (5th Cir. 2015).unpublished
    Under that doctrine, a party may “appeal a collateral order if the order (1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewa…
  • In re Len Davis, No. 14-30552 (5th Cir. Oct. 28, 2015).unpublished
    However, because this appeal is not from a final order, no COA is required. 5 Case: 14-30552 Document: 00513250539 Page: 6 Date Filed: 10/28/2015 Nos. 14-30516 & 14-30552 a final judgment.” In re Bradford, 660 F.3d 226, 228 (5th Cir. 2011)…
  • United States v. Chester Ennis, 559 F. App'x 337 (5th Cir. 2014).unpublished
    In re Bradford, 660 F.3d 226, 228-29 (5th Cir.2011).
  • Jose Elizondo v. City of Garland Police Dep, 671 F.3d 506 (5th Cir. 2012).published 2 cites
    “Pursuant to the collateral order doctrine, a litigant may immediately appeal a collateral order if the order (1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the act…
  • Daniel Watts v. Robert Tanner, 697 F. App'x 267 (5th Cir. 2017).unpublished
    See In re Bradford, 660 F.3d 226, 228-29 (5th Cir. 2011); see also United States v. Fulton, 780 F.3d 683, 688 (5th Cir. 2015).
  • David Patterson v. Darrel Vannoy, 689 F. App'x 360 (5th Cir. 2017).unpublished
    See In re Bradford, 660 F.3d 226, 228-29 (5th Cir. 2011); see also United States v. Fulton, 780 F.3d 683, 688 (5th Cir. 2015).
  • United States v. Wallace Haynes, III, 469 F. App'x 317 (5th Cir. 2012).unpublished
Show 1 more citing case
At page 229 Reviewability of collateral orders after district court transfer4 citing cases“We now hold that this Court has jurisdiction over appeals from orders that transfer successive motions to this Court. 1 As previously explained, Brinar is inapposite because it involved a transfer of the successive petition to another circuit, and the appeal of the transfer order was before this Co…”the opinion's own words at *229
  • Def. Distributed v. Bruck, 30 F.4th 414 (5th Cir. 2022).published
    See In re Sepulvado, 707 F.3d 550, 552 (5th Cir. 2013); In re Bradford, 660 F.3d 226, 229 (5th Cir. 2011).
  • Jackson v. Lumpkin, 25 F.4th 339 (5th Cir. 2022).published
    In re Bradford, 660 F.3d 226, 229 (5th Cir. 2011) (per curiam).
  • In re Christopher Sepulvado, 707 F.3d 550 (5th Cir. 2013).published
    See Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.1987) ("This Court must examine the basis of its jurisdiction, on its own motion, if necessary.”); Martin v. Halliburton, 618 F.3d 476, 481 (5th Cir.2010) ("We have jurisdiction to determine…
  • Christopher Sepulvado v. Burl Cain, No. 13-70004 (5th Cir. Feb. 7, 2013).published
    In concluding that it lacked jurisdiction to consider Sepulvado’s second-in- 2 See Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.1987) (“This Court must examine the basis of its jurisdiction, on its own motion, if necessary.”); Martin v. Hal…
At page 231 Determining retroactive application of prior court holdings3 citing casesS.Ct. 1581; James, 550 U.S. at 195-96,127 S.Ct. 1586. Moreover, in none of these cases did the Court state that its holding was retroactively applicable on…opening of page *231 (no citing court says what it cites this page for) · 1 cautionary
Retrieving the full opinion text from the archive…
In Re Cecil Lumont BRADFORD, Movant. Cecil Lumont Bradford, Petitioner-Appellant,
v.
Rebecca Tamez, Warden, Respondent-Appellee
10-11236, 10-11249.
Court of Appeals for the Fifth Circuit.
Oct 7, 2011.
Published opinion
660 F.3d 226
2011 WL 4635119
Cecil Lumont Bradford, Pollock, LA, pro se.
Smith, Barksdale, Benavides.
Cited by 81 opinions  |  Published
PER CURIAM:

Proceeding pro se, Cecil Lumont Bradford appeals the district court’s order[*228] transferring his 28 U.S.C. § 2255 motion to this Court. Additionally, Bradford has filed a motion for a Certificate of Appealability or, in the alternative, a motion for authorization to file a successive § 2255 motion. After first determining sua sponte that we have jurisdiction over the appeal, we affirm the district court’s transfer order and deny the motion for authorization to file a successive § 2255 motion.

I. PROCEDURAL HISTORY

Bradford pleaded guilty to one count of possession of cocaine with intent to distribute and one count of felony possession of a firearm. The district court imposed a career offender enhancement pursuant to U.S.S.G. § 4B1.1, and sentenced Bradford to 170 months of imprisonment on the drug count and 120 months of imprisonment on the firearm count. He did not file a direct appeal.

Bradford thereafter moved to vacate his sentence pursuant to § 2255. The district court denied the motion, which Bradford did not appeal. Subsequently, in this Court, he filed a motion for leave to file a successive § 2255 motion challenging the career offender enhancement to his sentence and arguing, among other things, that a new rule of constitutional law set forth in Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), supported his claim. This Court denied the motion.

Most recently, Bradford filed two petitions for habeas relief pursuant to 28 U.S.C. § 2241 which the district court consolidated, construed as a second or successive § 2255 motion, and transferred to this Court. Bradford timely filed a notice of appeal from the judgment and also filed a separate motion for a COA or, in the alternative, a motion for authorization to file a successive § 2255 motion. Although initially docketed as separate matters, the motion and the appeal were later consolidated.

II. ANALYSIS

A. Jurisdiction

“This Court must examine the basis of its jurisdiction, on its own motion, if necessary.” Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.1987). We now determine whether this Court has jurisdiction over the district court’s order transferring his motion for authorization to file a successive § 2255. Pursuant to the collateral order doctrine, a litigant may immediately appeal a collateral order if the order “(1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment.” A-Mark Auction Galleries, Inc. v. American Numismatic Ass’n, 233 F.3d 895, 898 (5th Cir.2000).

In Brinar v. Williamson, 245 F.3d 515 (5th Cir.2001), this Court held that a district court’s order transferring a habeas corpus petition to another circuit was not an appealable, interlocutory order. The district court construed the petitioner’s § 2241 petition as a successive § 2255 motion and transferred it to the Ninth Circuit Court of Appeals because that is the jurisdiction in which the petitioner had been sentenced. Id. at 516. The transfer was authorized by 28 U.S.C. § 1631, which provides that if a civil action is filed in a court that has no jurisdiction then “the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed.” This Court reasoned that because the § 2255 was pending in another circuit, the transfer order was reviewable, and therefore, it was not a final adjudication. Id. at 517-18. Because it was not an[*229] appealable collateral order, we dismissed the case for lack of jurisdiction.

In the instant case, as in Brinar, the district court transferred Bradford’s case pursuant to § 1631. However, the material distinction is that the transfer of the successive motion in Brinar was to another circuit, and Brinar’s appeal of the transfer order was to this Court. Thus, in Brinar, the transferred motion was pending before another court. Here, both the appeal of the order and the successive motion are before this Court, and if this Court dismisses it, the claim that the district court erroneously transferred it would be effectively unreviewable. Indeed, in Brinar, this Court expressly recognized that a petitioner who argued that the district court improperly characterized the § 2241 petition as a successive § 2255 motion would be able to raise that point in the transferee court. 245 F.3d at 517. Because the transferee court could address that argument, it was reviewable. Since it was reviewable, it was not appealable under the collateral order doctrine. Id. (citing Middlebrooks v. Smith, 735 F.2d 431 (11th Cir.1984)); accord Murphy v. Reid, 332 F.3d 82, 84-85 (2d Cir.2003) (explaining that the transferee court is free to consider whether the district court correctly determined that the § 2241 writ was actually a successive § 2255 motion). In the instant case, as the transferee court, we have before us both the appeal from the transfer order and the § 2255 motion. If this Court dismisses the appeal, it is effectively unreviewable. Brinar therefore is inapposite.

Subsequent to Brinar, in Henderson v. Haro, a petitioner had filed several § 2255 motions that had been denied. 282 F.3d 862, 863 (5th Cir.2002). The petitioner then filed a writ under § 2241, alleging a defective indictment and ineffective assistance of counsel. Id. The district court construed the writ as a § 2255 motion and transferred it to this Court to determine whether a successive motion would be authorized. Id. Henderson appealed the transfer order, arguing that the district court erred in construing his § 2241 writ as a § 2255 motion. This Court affirmed the district court’s transfer order, and denied leave to file a successive § 2255 petition. Id. at 864. In Henderson, we did not expressly consider whether we had jurisdiction over the appeal. We now hold that this Court has jurisdiction over appeals from orders that transfer successive motions to this Court. [1] As previously explained, Brinar is inapposite because it involved a transfer of the successive petition to another circuit, and the appeal of the transfer order was before this Court. The instant cases are like Henderson in that the successive § 2255 motion and the appeal from the transfer order are both before this Court. Here, the appeal of the transfer order: (1) will conclusively determine the correctness of the transfer; (2) is separate from the merits of the § 2255 motion; and (3) is effectively unreviewable if the appeal is dismissed. As in Henderson, this is an appealable, collateral order, and we thus have jurisdiction over the order and the § 2255 motion.

B. Successive § 2255 Motion

We now turn to determine whether the district court properly characterized Bradford’s § 2241 petitions as a § 2255 motion, which the court transferred to this Court as a successive motion. Section 2255 provides the “primary means of[*230] collaterally attacking a federal sentence” based on “errors that occurred at or prior to the sentencing.” Padilla v. United States, 416 F.3d 424, 425-26 (5th Cir.2005) (internal quotation marks and citation omitted). A § 2241 petition attacking the imposition of a federal sentence may be considered only where the petitioner establishes that § 2255 is inadequate or ineffective to test the legality of his detention. Id. at 426. The petitioner must affirmatively establish that § 2255 is an inadequate or ineffective remedy. Id. This requires a showing (i) that his claim “is based on a retroactively applicable Supreme Court decision which establishes that the petitioner may have been convicted of a nonexistent offense” and (ii) that the claim “was foreclosed by circuit law at the time when the claim should have been raised in the petitioner’s trial, appeal, or first § 2255 motion.” Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir.2001).

Bradford argues that he was erroneously sentenced as a career offender in light of recent decisions issued by the United States Supreme Court in Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), and contends that, as a result, he has been convicted of a nonexistent offense. However, this Court has held that a claim of actual innocence of a career offender enhancement is not a claim of actual innocence of the crime of conviction and, thus, not the type of claim that warrants review under § 2241. Kinder v. Purdy, 222 F.3d 209, 213-14 (5th Cir.2000). Bradford fails the first prong of the Reyes-Requena test such that the district court properly construed his § 2241 petitions as a successive § 2255 motion. See Reyes-Requena, 243 F.3d at 904; Padilla, 416 F.3d at 425-26. Thus, the district court properly transferred the successive motion to this Court.

C. Motion for Authorization

Bradford separately moves for authorization to file a second or successive § 2255 motion. A prisoner must seek authorization from this Court before a second or successive § 2255 motion may be filed in the district court. See § 2255(h); 28 U.S.C. § 2244(b)(3)(A). The movant must make a prima facie showing that his proposed § 2255 motion relies upon either (1) “newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense” or (2) “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” § 2255(h); § 2244(b)(3)(C); ReyesRequena, 243 F.3d at 897. When seeking leave to file a successive § 2255 motion on the basis of a new rule of constitutional law, a movant “must point to a Supreme Court decision that either expressly declares the collateral availability of the rule ... or applies the rule in a collateral proceeding.” In re Tatum, 233 F.3d 857, 859 (5th Cir.2000) (internal quotation marks and citation omitted).

Bradford does not base his motion for authorization upon newly discovered evidence; rather, relying on § 2255(h)(2), he contends that he was erroneously sentenced as a career offender in light of what he asserts is a new rule of constitutional law announced, collectively, in Chambers, Begay, and James. However, these cases were direct appellate, not collateral, proceedings. Chambers, 555 U.S. at 125, 129 S.Ct. 687; Begay, 553 U.S. at 140, 128[*231] S.Ct. 1581; James, 550 U.S. at 195-96,127 S.Ct. 1586. Moreover, in none of these cases did the Court state that its holding was retroactively applicable on collateral review. Bradford does not cite (nor do we find) Supreme Court precedent declaring that those cases are to be applied retroactively. He therefore fails to show that Chambers, Begay, and James were made retroactive to cases on collateral review by the Court. See Tatum, 233 F.3d at 859; § 2255(h)(2).

III. CONCLUSION

For the foregoing reasons, the district court’s transfer order is AFFIRMED and the motion for authorization is DENIED.

1

. We are aware that we have treated this issue inconsistently in our unpublished opinions. Such opinions, however, are not binding precedent. Arnold v. Thaler, 630 F.3d 367, 371 n. 2 (5th Cir.2011) (citing 5th Cir. R. 47.5.4).