     Case: 11-30194     Document: 00511605116         Page: 1     Date Filed: 09/16/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                        September 16, 2011
                                     No. 11-30194
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

VICTOR G. BAXTER,

                                                  Petitioner-Appellant

v.

W. A. SHERROD, Warden, United States Penitentiary, Pollock,

                                                  Respondent-Appellee


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 6:10-CV-1622


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
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 certificate of appealability (COA) to appeal the district

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-30194    Document: 00511605116     Page: 2   Date Filed: 09/16/2011

                                   No. 11-30194

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 cognizable 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.




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