                      REVISED - September 14, 2000

                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT

                          _____________________

                               No. 99-41459
                          _____________________


     DAVID KINDER

                                       Petitioner - Appellant

          v.

     MICHAEL A PURDY
                                       Respondent - Appellee

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
_________________________________________________________________

                             August 9, 2000

Before KING, Chief Judge, and REYNALDO G. GARZA and PARKER,
Circuit Judges.

PER CURIAM:

     Petitioner-Appellant David Kinder appeals from the lower

court’s dismissal of his 28 U.S.C. § 2241 petition for a writ of

habeas corpus.    Because we determine that the dismissal was

proper, we affirm.



                 I.   FACTUAL AND PROCEDURAL BACKGROUND

     This is the fourth time that Petitioner-Appellant David

Kinder is before us.     We have recounted the facts pertinent to
his conviction in published opinions from his direct appeal, see

United States v. Kinder, 946 F.2d 362, 365 (5th Cir. 1991), cert.

denied, 503 U.S. 987 (1992); United States v. Kinder, 980 F.2d

961, 962 (5th Cir. 1992), cert. denied, 508 U.S. 923 (1993), and

so do not repeat ourselves here.       In brief, in 1990, Kinder was

convicted, pursuant to a guilty plea, of conspiracy to possess

more than 100 grams of methamphetamine with intent to distribute.

He was sentenced as a career offender under U.S.S.G. § 4B1.1 and

given a term of 400 months in prison.

     After Kinder’s conviction and sentence became final, we

determined that in defining § 4B1.1’s “controlled substance

offenses” to include drug conspiracies, the Sentencing Commission

had exceeded its authority as its definition was broader than the

definition provided in 28 U.S.C. § 994(h), the provision under

which the Commission had claimed authority for its action.       See

United States v. Bellazerius, 24 F.3d 698, 700-02 (5th Cir.

1994).   We noted that the Commission could have exercised its

authority under § 994(a)-(f) and defined “controlled substance

offenses” to include conspiracies, but that it had not, in fact,

done so.   See id. at 701-02.   Because Kinder had been convicted

of conspiracy and had had the Sentencing Guidelines’ career

offender provisions applied, he filed a motion to vacate, set

aside, or correct his sentence pursuant to 28 U.S.C. § 2255, and

argued that under Bellazerius, his drug conspiracy conviction

could not support application of § 4B1.1.      The district court

                                   2
denied relief, and we subsequently affirmed that decision in an

unpublished opinion.    See United States v. Kinder, No. 95-50139,

at 1-6 (5th Cir. Oct. 12, 1995).       We held that Kinder’s

Bellazerius claim, which challenged the trial court’s technical

misapplication of the Sentencing Guidelines, was not cognizable

in a § 2255 motion.    See id. at 2-3.

     On January 12, 1999, Kinder filed a motion pursuant to 28

U.S.C. § 2241 in the United States District Court for the

Southern District of Texas, Corpus Christi Division.       Judge H.W.

Head, Jr. construed Kinder’s motion as a challenge to the

imposition and terms of his sentence, and as a result,

transferred the case to the sentencing court, the United States

District Court for the Western District of Texas, Waco Division.

Determining that Kinder’s claim was identical to his prior § 2255

motion, Judge Walter S. Smith, Jr. dismissed the motion on July

30, 1999.

     Kinder’s second § 2241 petition, again filed in the United

States District Court for the Southern District of Texas, Corpus

Christi Division, fared no better below.       Judge Head, considering

Kinder’s argument that his Bellazerius claim is cognizable under

§ 2241 because the remedy under § 2255 is inadequate or

ineffective, determined that Kinder had failed to demonstrate

that he had “‘no reasonable opportunity to obtain earlier

judicial correction of a fundamental defect in his conviction or

sentence because the law changed after his first § 2255 motion.’”

                                   3
Order of Dismissal, R. at 5 (quoting In re Davenport, 147 F.3d

605, 610 (7th Cir. 1998)).   As a result, Judge Head perceived the

petition as an attempt to circumvent the rule against successive

§ 2255 motions, and on November 23, 1999, dismissed it.    Kinder

timely appeals.



                         II.   DISCUSSION

     At the heart of Kinder’s challenge is his claim that because

his sentence was determined through the Sentencing Guideline’s

application of career offender provisions to those convicted only

of conspiracy, and because such an application was subsequently

declared to lie outside the Sentencing Commission’s claimed

authority, see Bellazerius, 24 F.3d at 700-02, he is now

incarcerated and detained illegally.   Kinder argues that the

court below erred in dismissing his § 2241 petition because, as

he is challenging the legality of his detention, his petition was

properly brought pursuant to that provision.   Connected to this

argument is Kinder’s contention that application of the amended

Sentencing Guidelines would violate the Ex Post Facto Clause.1

     1
        As we described in United States v. Lightbourn, 115 F.3d
291 (5th Cir. 1997), after our decision in Bellazerius, the
Sentencing Commission amended the Background Commentary to
§ 4B1.1 to alter the source of authority from strict reliance on
28 U.S.C. § 994(h) to reliance on the “general guideline
promulgation authority within 28 U.S.C. § 994(a)-(f).” 115 F.3d
at 292-93. This change, which became effective on November 1,
1995, eliminated the concerns we expressed in Bellazerius. See
Lightbourn, 115 F.3d at 293. As a result of the amendment,
“[t]he Sentencing Commission has now lawfully included drug

                                 4
Alternatively, Kinder argues that dismissal was improper because

he is entitled to § 2241 relief as § 2255 offers an inadequate

and ineffective remedy.    We review a district court’s dismissal

of a § 2241 petition on the pleadings de novo.       See Venegas v.

Henman, 126 F.3d 760, 761 (5th Cir. 1997).

     As we recently noted, “[a] section 2241 petition on behalf

of a sentenced prisoner attacks the manner in which a sentence is

carried out or the prison authorities’ determination of its

duration, and must be filed in the same district where the

prisoner is incarcerated.”    Pack v. Yusuff, — F.3d —, 2000 WL

942919, at *2 (5th Cir. July 10, 2000).      Although he

characterizes his claim as a challenge to the legality of his

detention, Kinder actually attacks the manner in which his

sentence was determined.   Underlying his argument is the notion

that his detention would not be “illegal” had his sentence been

determined in accordance with Bellazerius, i.e., career offender

provisions had not been applied.       Because Kinder challenges the

manner in which his sentence was initially determined, he must

seek post-conviction relief under § 2255.       See Pack, 2000 WL

942919, at *2 (“Relief under section 2255 is warranted for errors

cognizable on collateral review that occurred ‘at or prior to



conspiracies in the category of crimes triggering classification
as a career offender under § 4B1.1 of the Sentencing Guidelines.”
Id.   Because we do not attempt to apply these amendments to
Kinder, we do not address his argument that such an application
would violate the Ex Post Facto Clause.

                                   5
sentencing’.” (quoting Cox v. Warden, Fed. Detention Ctr., 911

F.2d 1111, 1113 (5th Cir. 1990))).    Such motions must be filed in

the sentencing court.   See id.

      “A section 2241 petition that seeks to challenge the

validity of a federal sentence must either be dismissed or

construed as a section 2255 motion.”    Pack, 2000 WL 942919, at

*2.   Because Kinder did not file his motion in the sentencing

court, construing his § 2241 motion as a § 2255 motion will not

alter the end result — dismissal — unless Kinder can demonstrate

that his case falls within § 2255’s “savings clause,” i.e., that

“the remedy by [§ 2255] motion is inadequate or ineffective to

test the legality of his detention.”   28 U.S.C. § 2255; see Pack,

2000 WL 942919, at *3; McGhee v. Hanberry, 604 F.2d 9, 10 (5th

Cir. 1979).

      Kinder presents three arguments for why § 2255 relief is

inadequate or ineffective.   First, he contends that he is

actually innocent of being a § 4B1.1 career offender.    Second, he

asserts, correctly, that he cannot present his claim under

Bellazerius because we have held that Kinder and other

individuals who were sentenced prior to our decision in that case

can not use that decision to vacate their sentences through a

§ 2255 motion.   See United States v. Williamson, 183 F.3d 458,

462 (5th Cir. 1999); Kinder, No. 95-50139, at 2-3.    Finally, he

states that he cannot satisfy the requirements of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

                                  6
Pub. L. No. 104-132, 110 Stat. 1214, because any § 2255 motion

now filed would be considered a successive petition.

     As we have previously noted, “a prior unsuccessful § 2255

motion is insufficient, in and of itself, to show the inadequacy

or ineffectiveness of the remedy.”    McGhee, 604 F.2d at 10.   The

fact that any of Kinder’s subsequently filed § 2255 motions

likely will be considered successive petitions and barred under

AEDPA is also insufficient to render § 2255 an inadequate or

ineffective remedy.    See Pack, 2000 WL 942919, at *3.   “A ruling

that the section 2255 remedy was inadequate or ineffective, such

that a petitioner could invoke section 2241, simply because the

petitioner’s prior section 2255 motion was unsuccessful, or

barred, or because he could not file another motion, would render

[§ 2255’s and § 2244’s] procedural requirements a nullity and

defy Congress’s clear attempt to limit successive habeas

petitions.”   Id.   This leaves Kinder’s “actual innocence”

argument.

     Habeas corpus relief is extraordinary and “is reserved for

transgressions of constitutional rights and for a narrow range of

injuries that could not have been raised on direct appeal and

would, if condoned, result in a complete miscarriage of justice.”

United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).

Because we issued our opinion in Bellazerius subsequent to

affirmance on appeal of Kinder’s conviction and sentence, he

could not have raised the issue on direct appeal.   He argues that

                                  7
condoning the injury — the improper enhancement of his sentence —

would result in a “complete miscarriage of justice” because he is

actually innocent of being a career offender in light of

Bellazerius.

     Claims of actual innocence have been recognized by some

courts as being possible bases for review under § 2241 when

§ 2255’s restrictions foreclose subsequent petitions.    See, e.g.,

Cooper v. United States, 199 F.3d 898, 901 (7th Cir. 1999);

Triestman v. United States, 124 F.3d 361, 377-80 (2d Cir. 1997);

see generally Wofford v. Scott, 177 F.3d 1236, 1242-44 (11th Cir.

1999) (describing various courts’ approaches to the question of

when a case may fall under § 2255’s savings clause).    Kinder’s

argument that he is actually innocent of being a career offender

in light of Bellazerius, however, is not the type of argument

that courts have recognized may warrant review under § 2241.

Recent cases examining the scope of § 2255’s savings clause have

done so because of the Supreme Court’s decision in Bailey v.

United States, 516 U.S. 137 (1995).   See In re Davenport, 147

F.3d 605 (7th Cir. 1998); Triestman, 124 F.3d 361; In re

Dorsainvil, 119 F.3d 245 (3d Cir. 1997); In re Vial, 115 F.3d

1192 (4th Cir. 1997) (en banc).   Where the petitioner’s case has

been viewed as falling within the savings clause, it was in part

because the petitioner arguably was convicted for a nonexistent




                                  8
offense.2   See Davenport, 147 F.3d at 611; Dorsainvil, 119 F.3d

at 251; Triestman, 124 F.3d at 363.    Thus, in each case, the

petitioner could claim he was actually innocent of the crime of

which he was convicted.   In contrast, Kinder argues that, under

Bellazerius, his conviction of conspiracy cannot support

application of the Guidelines’ career offender provisions.3      He

makes no assertion that he is innocent of the crime for which he

was convicted.

     As we noted above, Kinder raised a claim under Bellazerius

in his first § 2255 motion.    We rejected Kinder’s claim, holding

that it was not cognizable under § 2255.    See Kinder, No. 95-

50139, at 2-3.   Relying on § 2255’s savings clause, he now seeks

a determination that he is entitled to have the merits of his

claim reviewed under § 2241.

     We note that the scope of the § 2255 remedy is no different

from the scope of the § 2241 remedy.    See Wofford, 177 F.3d at

1239 (“There was no intent to make the § 2255 remedy any

different in scope from the habeas remedy that had previously


     2
        Bailey, a retroactively applicable Supreme Court
decision, interpreted 18 U.S.C. § 924(c)(1) narrowly, with the
result that those convicted of violating § 924(c)(1) in circuits
employing a broader interpretation of the statute could arguably
be said to have been convicted for a nonexistent offense. See
Davenport, 147 F.3d at 611.
     3
         In our opinion affirming the district court’s dismissal
of Kinder’s § 2255 motion, we noted that Kinder “has a history of
criminal behavior including six prior convictions for various
offenses.” See Kinder, No. 95-50139, at 1 n.1.

                                 9
been available to [federal prisoners]:     ‘On the contrary, the

sole purpose was to minimize the difficulties encountered in

habeas corpus hearings by affording the same rights in another

and more convenient forum.’” (quoting United States v. Hayman,

342 U.S. 205, 219 (1952))).    In effect, Kinder attempts to use

the fact that relief under § 2255 has been denied to obtain a

decision contrary to our prior holdings, including the holding in

his case, that individuals sentenced as career offenders prior to

Bellazerius cannot use that decision to obtain habeas relief.

See Williamson, 183 F.3d at 462.      Section 2241 is simply not

available to prisoners as a means of challenging a result they

previously obtained from a court considering their petition for

habeas relief.



                        III.    CONCLUSION

     Because Kinder has not demonstrated that his case falls

within § 2255’s savings clause, we affirm the district court’s

dismissal of his § 2241 petition.




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