Turner v. Worden Coleman FCI

• Citation: 709 F.3d 1328
• Decision Date: 22 February 2013
• Docket Number: No. 10–12094.,10–12094.
• Parties: Michael TURNER, Petitioner–Appellant, v. WARDEN COLEMAN FCI (MEDIUM), Respondent–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

709 F.3d 1328

Michael TURNER, Petitioner–Appellant,

v.WARDEN COLEMAN FCI (MEDIUM), Respondent–Appellee.

No. 10–12094.

United States Court of Appeals,Eleventh Circuit.

Feb. 22, 2013.

Robert Allen Ratliff (Court–Appointed), Robert A. Ratliff, PC, Mobile, AL, for Petitioner–Appellant.

Roberta Josephina Bodnar, U.S. Atty., Orlando, FL, Linda Julin McNamara, Peter J. Sholl, U.S. Attys., Tampa, FL, Zachary James Kelton, U.S. Dept. of Justice, Legal Dept., Coleman, FL, for Respondent–Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before WILSON and HILL, Circuit Judges, and HUCK,^* District Judge.

WILSON, Circuit Judge:

Michael Turner, a federal prisoner, appeals the district court's dismissal of his 28 U.S.C. § 2241 petition for a writ of habeas corpus, arguing that his § 2241 petition is cognizable under the savings clause of 28 U.S.C. § 2255 because intervening changes in the law have rendered § 2255 “inadequate or ineffective to test the legality of his detention.” § 2255(e). Specifically, Turner argues that he no longer qualifies for an enhanced sentence pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), because under law passed down since his initial § 2255 motion, the offenses that formed the predicate for the enhancement no longer qualify as “violent felonies” under the ACCA. Finding no error in the district court's classification of Turner's convictions as violent felonies under § 924(e), we affirm.

I. Background and Procedural History

In 2004, Turner pleaded guilty, pursuant to a written plea agreement, to possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(e). During his plea colloquy, Turner acknowledged that he had previously been convicted of: (1) aggravated battery, (2) shooting into a building, (3) battery on a law enforcement officer, and (4) possession of a firearm by a convicted felon. Turner repeatedly acknowledged that because he had previously been convicted of three qualifying violent felonies, he would be subject to a 15–year mandatory minimum sentence under the ACCA. See 18 U.S.C. § 924(e).

In preparation for Turner's sentencing, the United States Probation Office prepared a Presentence Investigation Report (PSR), which detailed Turner's long criminal history. Of particular relevance to this appeal, the PSR included descriptions of Turner's previous convictions for: (1) shooting into an occupied building and aggravated assault; (2) battery on a law enforcement officer; and (3) aggravated battery. With regard to the convictions for shooting into an occupied building and aggravated assault, the PSR explained that in 1981, Turner had fired two shots at a man standing outside of his home, and that one of the two shots had entered through the front window of the home. As to the conviction for battery on a law enforcement officer, the PSR relayed that in 1986, Turner fled from officers after an apparent drug transaction, resisted their attempt to subdue him, and pushed one of deputies against a wall, injuring her left hand. Finally, the PSR explained that Turner's conviction for aggravated battery stemmed from an incident in which Turner stabbed a man in the chest in 1996. Turner did not object, either before or during his sentencing, to the PSR's factual descriptions of these offenses.

The PSR initially calculated Turner's guideline range at 77 to 96 months; however, because he had three convictions for the violent felonies referenced above, Turner's sentence was subject to the ACCA enhancement, which mandated a minimum sentence of 15 years' imprisonment. See id. At his sentencing, Turner's sole objection was that, because the convictions underlying the ACCA enhancement were not set out in the indictment, stipulated to in the plea agreement, or admitted at the plea colloquy, the application of the ACCA enhancement violated the teachings of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Nonetheless, at no point during his plea colloquy or his sentencing did Turner object to the factual assertions set forth in the PSR, including the descriptions of his various crimes. The district court overruled Turner's objection, adopted the factual findings and guideline applications as set forth in the PSR, and sentenced Turner to 188 months' imprisonment, at the low end of the ACCA-enhanced guideline range. Had he not been subject to the ACCA enhancement, Turner's maximum sentence would have been 10 years in prison. § 924(a)(2).

Turner timely appealed, again asserting his Blakely challenge. We affirmed, and the Supreme Court denied certiorari. See United States v. Turner, 133 Fed.Appx. 631, 632 (11th Cir.) (per curiam), cert. denied,546 U.S. 921, 126 S.Ct. 302, 163 L.Ed.2d 262 (2005). On July 21, 2006, Turner filed a pro se § 2255 motion to vacate, set aside, or correct his sentence, renewing his Blakely challenge and arguing for the first time that his guilty plea had been unknowing and involuntary because he was unaware of the ACCA 15–year minimum sentence to which he would be subject. The district court denied relief.

Three years later, in March 2009, Turner filed pro se the § 2241 petition that forms the heart of the instant dispute. This time, however, Turner abandoned his Blakely challenge and argued that, in light of the Supreme Court's decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and this court's decision in United States v. Archer, 531 F.3d 1347 (11th Cir.2008), he is “actually innocent of being a[n] armed career offender” because the offenses underlying his ACCA enhancement no longer qualify as violent felonies. He also argued for the first time that the government's use of information from arrest and booking reports in ascertaining the extent of his prior criminal convictions was a violation of the Supreme Court's decision in Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 1257, 161 L.Ed.2d 205 (2005) (holding that, in determining whether a past conviction qualifies as a violent felony under the ACCA, a sentencing court “is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented”). The district court dismissed the § 2241 petition for lack of jurisdiction, finding that Turner's petition was not cognizable because he did not satisfy the savings clause of § 2255(e). The district court also held that Turner's Shepard claim was procedurally barred because he had an opportunity to raise it in his initial § 2255 motion but failed to do so. This appeal followed.

II. Discussion

Turner wages a two-pronged attack upon the district court's dismissal of his § 2241 petition. He first argues that Begay and other intervening changes in the law since the disposition of his initial § 2255 motion have rendered erroneous the violent felony enhancement he received under the ACCA. He then argues, pursuant to Shepard, that the sentencing court erroneously relied upon police reports and arrest affidavits to prove the substance of his prior convictions. We review de novo the availability of habeas relief under § 2241, Dohrmann v. United States, 442 F.3d 1279, 1280 (11th Cir.2006), and “we may affirm for any reason supported by the record, even if not relied upon by the district court.” United States v. Al–Arian, 514 F.3d 1184, 1189 (11th Cir.2008) (per curiam) (internal quotation marks omitted).

1. The Intersection of §§ 2255 and 2241

“Typically, collateral attacks on the validity of a federal sentence must be brought under § 2255.” Darby v. Hawk–Sawyer, 405 F.3d 942, 944 (11th Cir.2005) (per curiam). Once a petitioner has filed his initial § 2255 motion, however, he is barred from making second and successive motions except in two carefully delineated circumstances, neither of which applies here. See 28 U.S.C. § 2255(h) (requiring the court of appeals to certify the existence of either newly discovered evidence or a new rule of retroactively applicable constitutional law before a petitioner can file a second or successive § 2255 petition). In addition, pursuant to § 2255(e), the so-called “savings clause,” a prisoner may file a § 2241 petition if the § 2255 remedy “is inadequate or ineffective to test the legality of his detention.” § 2255(e); see Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir.2003). The burden of demonstrating the inadequacy or ineffectiveness of the § 2255 remedy rests squarely on the petitioner. McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir.1979) (per curiam).¹

What, then, must a petitioner demonstrate to open the portal of § 2241 through the § 2255 savings clause? We have previously indicated that the savings clause of § 2255 may permit a petitioner to bring a claim under § 2241 when: “1) th[e] claim is based upon a retroactively applicable Supreme Court decision; 2) the holding of that Supreme Court decision establishes the petitioner was convicted for a nonexistent offense; and, 3) circuit law squarely foreclosed such a claim at the time it otherwise should have been raised in the petitioner's trial, appeal, or first § 2255 motion.” Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir.1999).² Sitting en banc, however, we recently retreated from the purported three-factor test enumerated in Wofford, calling it “only dicta,” and explaining that “[t]he actual holding of the Wofford decision ... is simply that the savings clause does not cover sentence claims that could have been raised in earlier proceedings.” Gilbert v. United States, 640 F.3d 1293, 1319 (11th Cir.2011) (en banc), cert. denied,––– U.S. ––––, 132 S.Ct. 1001, 181 L.Ed.2d 743 (2012). We then held that “the savings clause does not authorize a federal prisoner to bring in a § 2241 petition a claim, which would otherwise be barred by § 2255(h), that the sentencing guidelines were misapplied in...