Lester v. Flournoy

• Decision Date: 30 November 2018
• Docket Number: No. 13-6956,13-6956
• Citation: 909 F.3d 708
• Parties: Stoney LESTER, Petitioner–Appellant, v. J.V. FLOURNOY, Warden of FCI Jesup, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

909 F.3d 708

Stoney LESTER, Petitioner–Appellant,

v.J.V. FLOURNOY, Warden of FCI Jesup, Respondent–Appellee.

No. 13-6956

United States Court of Appeals, Fourth Circuit.

Argued: October 30, 2018

Decided: November 30, 2018

ARGUED: Bradley Nelson Garcia, O'MELVENY & MYERS LLP, Washington, D.C., for Appellant. Michael Alan Rotker, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Jonathan D. Hacker, Kathryn E. Tarbert, Rakesh Kilaru, O'MELVENY & MYERS LLP, Washington, D.C., for Appellant. Leslie R. Caldwell, Assistant Attorney General, Brian A. Benczkowski, Assistant Attorney General, David A. O’Neil, Acting Deputy Assistant Attorney General, Sung-Hee Suh, Deputy Assistant Attorney General, Matthew S. Miner, Deputy Assistant Attorney General, Appellate Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Dana J. Boente, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.

Vacated and remanded by published opinion. Judge Diaz wrote the opinion, in which Judge Duncan and Judge Keenan joined.

DIAZ, Circuit Judge:

In 2004, after pleading guilty to selling crack cocaine to a government informant, Stoney Lester was sentenced to almost 22 years in prison. Lester received that sentence because he was designated a career offender under the then-mandatory Sentencing Guidelines. Later precedent, however, established that this designation was wrong and that, as a result, Lester’s sentence should have been up to 11 years shorter. Lester sought relief through habeas corpus, but the district court denied his petition. Because our recent decision in United States v. Wheeler , 886 F.3d 415 (4th Cir. 2018), permits Lester’s challenge, we vacate and remand.

I.

Lester pled guilty to a single count of possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841. Under the Sentencing Guidelines, which at that time were mandatory, Lester was deemed a career offender and subject to a sentencing enhancement. See U.S. Sentencing Guidelines Manual (U.S.S.G.) § 4B1.1 (2004). This enhancement depended on a past conviction for a "crime of violence," namely Lester’s 1990 Georgia conviction for walkaway escape. With the enhancement, the guidelines range was 262–327 months in prison. Without the enhancement, however, Lester’s Guidelines range would have been 121–151 months. The statutory maximum sentence was 40 years. See 21 U.S.C. § 841(b)(1)(B). Lester received a sentence of 262 months (a bit under 22 years), right at the bottom of the required Guidelines range.

Lester appealed, unsuccessfully, and filed a motion to vacate his sentence under 28 U.S.C. § 2255, which was denied. In those proceedings Lester couldn't successfully challenge his classification as a career offender because, under then-controlling precedent, walkaway escape under Georgia law was a crime of violence. See United States v. Gay , 251 F.3d 950, 954–55 (11th Cir. 2001).¹ As the years passed by, however, the law changed in two important ways. First, the Supreme Court stripped the Sentencing Guidelines of legal force and made them purely advisory. United States v. Booker , 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Second, it ruled that the generic crime of failing to report to a prison was not a crime of violence, Chambers v. United States , 555 U.S. 122, 127–28, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), which led courts to hold that the escape offense Lester committed was not a crime of violence either. See United States v. Clay , 627 F.3d 959, 969 (4th Cir. 2010) (collecting circuit cases); United States v. Lee , 586 F.3d 859, 874 (11th Cir. 2009).

These new precedents in hand, Lester sought habeas relief in the U.S. District Court for the Eastern District of Virginia in 2012. In his petition, he contended that his escape offense was not a crime of violence, that he thus wasn't subject to the career offender enhancement, and that his 262-month sentence was therefore unlawful because it exceeded the then-mandatory Guidelines range of 121–151 months.

Because Lester had already filed a petition under 28 U.S.C. § 2255, the ordinary recourse for federal prisoners seeking postconviction relief, he couldn't bring his challenge under that statute. Instead, he filed under 28 U.S.C. § 2241, a catchall habeas statute, arguing that such petitions are allowed, pursuant to § 2255 ’s so-called "savings clause," when the latter statute is "inadequate or ineffective to test the legality of [one’s] detention." See id. § 2255(e). But the district court rejected this argument, reasoning that the savings clause didn't allow challenges based on Sentencing Guidelines errors, at least when the petitioner’s sentence, like Lester’s, still fell below the statutory maximum.

Lester appealed.

II.

That was in 2013. Since then, Lester’s appeal has been held in abeyance while our court decided three potentially relevant cases: Whiteside v. United States , 775 F.3d 180 (4th Cir. 2014) (en banc), United States v. Surratt , 797 F.3d 240 (4th Cir. 2015), vacated & dismissed as moot , 855 F.3d 218 (4th Cir. 2017) (en banc), and Wheeler , 886 F.3d 415. But now, with Wheeler shining light on the issues before us, we consider whether Lester may challenge his sentence via the savings clause of 28 U.S.C. § 2255. This is a question of law that we review de novo. United States v. Foote , 784 F.3d 931, 935–36 (4th Cir. 2015).

Section 2255 allows federal prisoners to challenge the legality of their confinement by petitioning the court where they were sentenced. 28 U.S.C. § 2255(a). But once the prisoner has filed one unsuccessful § 2255 motion, as Lester has, he may not file another except under very limited circumstances. Specifically, before filing a "second or successive" petition, the prisoner must first receive permission from the court of appeals by showing either "newly discovered evidence" proving he was not guilty of his offense or that a new, previously unavailable rule of constitutional law made retroactive on collateral review by the Supreme Court entitles him to relief. Id. § 2255(h)(1)–(2). These restrictions are referred to as the "gatekeeping provisions" of § 2255. Crucially, they don't allow a second petition for new statutory constructions.

The gatekeeping provisions bar most federal prisoners from taking a second bite at the habeas apple. But not completely. In limited circumstances, courts including ours have said that a prisoner otherwise unable to file a second or successive § 2255 petition may instead seek relief under 28 U.S.C. § 2241. See, e.g. , In re Jones , 226 F.3d 328, 333–34 (4th Cir. 2000) ; In re Davenport , 147 F.3d 605, 610–12 (7th Cir. 1998). That’s because § 2255, while generally blocking habeas petitions by federal prisoners outside that statute, permits such petitions when it appears that § 2255"is inadequate or ineffective to test the legality of [the prisoner’s] detention." 28 U.S.C. § 2255(e). This clause is commonly referred to as the "savings clause" as it arguably saves § 2255 from unconstitutionally suspending habeas corpus. See Reyes-Requena v. United States , 243 F.3d 893, 901 n.19 (5th Cir. 2001) (citing Swain v. Pressley , 430 U.S. 372, 381, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977) ).²

We have held that § 2255 ’s savings clause applies when, after a prisoner’s first § 2255 motion, "the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal." Jones , 226 F.3d at 333–34. When a prisoner in that situation is barred by the gatekeeping provisions from filing a second § 2255 motion, we have said § 2255 is "inadequate or ineffective to test the legality of [his] conviction" and allowed a petition under § 2241. Id. at 334.

More recently, in Wheeler , we ruled that a prisoner may use § 2255 ’s savings clause to challenge not just an unlawful conviction, but also a defective sentence. In that case, Gerard Wheeler was sentenced to ten years for involvement in a drug conspiracy. Wheeler , 886 F.3d at 419. That sentence was the minimum required by statute because the district court determined that Wheeler’s prior North Carolina conviction for cocaine possession was a "felony drug offense." Id. (quoting 21 U.S.C. § 841(b)(1)(B) ). Without the enhancement for the North Carolina conviction, however, Wheeler’s statutory sentencing range would have been between five and 40 years. Id. at 419–20.

After Wheeler was sentenced and had exhausted his direct appeals, we decided United States v. Simmons , 649 F.3d 237 (4th Cir. 2011) (en banc). Under this new precedent, Wheeler’s North Carolina conviction no longer qualified as a felony drug offense, so the ten-year mandatory minimum would not apply. Wheeler , 886 F.3d at 421. Wheeler thus sought to challenge his allegedly erroneous sentence, but he had already filed one unsuccessful § 2255 motion, and the gatekeeping provisions barred a second as Simmons was not a constitutional decision.

Nevertheless, we allowed Wheeler’s petition under § 2241 to proceed. We held that the savings clause could be used to challenge sentences, reasoning that the statutory language of the savings clause speaks of the legality of one’s "detention," not simply one’s "conviction" or "offense." Id. at 427–28 ; see 28 U.S.C. § 2255(e). We also noted that the Supreme Court has "long recognized a right to traditional habeas corpus relief based on an illegally extended sentence." Wheeler , 886 F.3d at 428 (citing Nelson v. Campbell , 541 U.S. 637, 643, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004) ).

We then outlined when the savings clause may be used to challenge erroneous sentences. Specifically, we said, § 2255 is inadequate and ineffective to test the legality of a sentence if the following four conditions are met:

(1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence;

(2)

...