Mackey v. Warden

• Decision Date: 06 January 2014
• Docket Number: No. 12–14729.,12–14729.
• Citation: 739 F.3d 657
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: Brian MACKEY, Petitioner–Appellant, v. WARDEN, FCC COLEMAN–MEDIUM, Respondent–Appellee.

739 F.3d 657

Brian MACKEY, Petitioner–Appellant,

v.WARDEN, FCC COLEMAN–MEDIUM, Respondent–Appellee.

No. 12–14729.

United States Court of Appeals, Eleventh Circuit.

Jan. 6, 2014.

Allan Farquhar Brooke, II, The Bedell Firm, Jacksonville, FL, for Petitioner–Appellant.

Brian Lenny Mackey, Yazoo City, MS, pro se.

Linda Julin McNamara, David Paul Rhodes, Robert E. O'Neill, U.S. Attorney's Office, Tampa, FL, Michael A. Rotker, U.S. Department of Justice, Washington, DC, Roberta Josephina Bodnar, U.S. Attorney's Office, Orlando, FL, for Respondent–Appellee.

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket Nos. 5:11–cv–00681–WTH–PRL; 1:03–cr–20715–JAL.

Before HULL and MARTIN, Circuit Judges, and BOWEN,^* District Judge.

HULL, Circuit Judge:

Petitioner Brian Mackey appeals the district court's denial of his 28 U.S.C. § 2241 habeas petition, which he attempted to bring pursuant to the “savings clause” in 28 U.S.C. § 2255(e). After review of the record and the briefs of the parties and the amicus, and having the benefit of oral argument, we conclude Mackey has satisfied the five requirements necessary to proceed with a § 2241 petition pursuant to § 2255(e) as set forth in Bryant v. Warden, FCC Coleman–Medium, No. 12–11212, 738 F.3d 1253, 1273–75, 2013 WL 6768086, at *19 (11th Cir. Dec. 24, 2013). Accordingly, we vacate the district court's denial of Mackey's § 2241 petition and remand with instructions set forth herein.

I. PROCEDURAL HISTORY

A. Indictment (2003)

In September 2003, a federal grand jury indicted Mackey on one count of knowingly possessing a firearm and ammunition while being a convicted felon, “in violation of [18 U.S.C. §§] 922(g)(1) and 924(e).” While § 922(g) prohibits the possession of a firearm or ammunition by a convicted felon, § 922 does not contain a penalty provision. See18 U.S.C. § 922.

The penalties for § 922(g) offenses are provided in § 924. Section 924(a)(2) provides that a person who is convicted of knowingly violating § 922(g) shall be “imprisoned not more than 10 years.” 18 U.S.C. § 924(a)(2). Section 924(e), known as the Armed Career Criminal Act (“ACCA”), prescribes different and higher statutory penalties for the § 922(g)(1) felon-in-possession offense. Section 924(e)(1) provides that, where a person “violates section 922(g)” and “has three previous convictions by any court ... for a violent felony or a serious drug offense, or both,” that person “shall be ... imprisoned not less than fifteen years.” 18 U.S.C. § 924(e)(1). The statutory maximum under § 924(e)(1) is life in prison. United States v. Brame, 997 F.2d 1426, 1428 (11th Cir.1993).

Prior to his trial, the government gave Mackey notice that it intended to seek the increased statutory penalties in § 924(e) based on his prior violent felony convictions, including two concealed-firearm convictions. As the basis for the increased penalty in § 924(e), the government cited these felony convictions: (1) a 1973 Florida conviction for attempted breaking and entering of a building; (2) a 1976 Florida conviction for robbery; (3) a 1991 Florida conviction for carrying a concealed firearm in violation of Fla. Stat. § 790.01; and (4) a 1994 Florida conviction for carrying a concealed firearm in violation of Fla. Stat. § 790.01.

In October 2004, Mackey pled guilty to his one-count indictment. The plea agreement reserved Mackey's right to appeal the denial of his motion to suppress evidence.

B. Presentence Investigation Report and Sentencing (2004–2005)

Mackey's Presentence Investigation Report (“PSI”) indicated that, because Mackey had 3 prior “violent felony” convictions, he was subject under § 924(e) to a mandatory minimum penalty of 15 years' imprisonment and a statutory maximum penalty of life.

Pursuant to U.S.S.G. § 2K2.1, Mackey's base offense level was 20 for his § 922(g)(1) felon-in-possession offense. Mackey received a 2–level decrease under § 3E1.1 for acceptance of responsibility. This resulted in an initial adjusted offense level of 18.

The PSI's criminal history section listed the felony convictions provided in the government's notice about the § 924(e) increased statutory penalties. The PSI also listed Mackey's many other convictions. Given his numerous prior convictions, the PSI assigned Mackey 3 criminal history points and placed him into criminal history category II.

Mackey's offense level of 18 and criminal history category of II yielded a guidelines range of 30 to 37 months' imprisonment. SeeU.S.S.G. ch. 5, pt. A, Sentencing Table (2004).

However, pursuant to the armed-career-criminal guideline, the PSI raised Mackey's adjusted offense level from 18 to 31 (after reducing 2 levels for acceptance of responsibility). SeeU.S.S.G. § 4B1.4(b)(3)(B). This armed-career-criminal classification raised Mackey's criminal history category from II to IV. SeeU.S.S.G. § 4B1.4(c). The offense level of 31, combined with a criminal history category of IV, resulted in a guidelines range of 151 to 188 months' imprisonment. However, due to § 924(e)'s mandatory minimum penalty of 15 years' imprisonment, Mackey's actual guidelines range was 180 to 188 months' imprisonment. SeeU.S.S.G. § 5G1.1(b).

The district court sentenced Mackey to 180 months' imprisonment and four years' supervised release.

C. Direct Appeal (2005)

On direct appeal, Mackey raised only the suppression issue that he had reserved when he pled guilty. See United States v. Mackey, 149 Fed.Appx. 874, 878 (11th Cir.2005). In September 2005, this Court affirmed Mackey's conviction and sentence. See id.

D. First § 2255 Motion (2006–2008)

In September 2006, Mackey filed his first 28 U.S.C. § 2255 motion to vacate his sentence. All issues presented in Mackey's motion were unrelated to his increased statutory penalties under § 924(e).

In July 2008, the district court denied Mackey's first § 2255 motion. Both the district court and this Court denied a Certificate of Appealability (“COA”).

E. Second § 2255 Motion (2008–2010)

In October 2008, Mackey filed a pro se motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2). Mackey argued that, under Begay¹ (as interpreted by this Court in Archer²), his Florida concealed-firearm convictions did not qualify as violent felonies under § 924(e)(2)(B) and, therefore, he should be resentenced.

The district court construed Mackey's § 3582(c)(2) motion as a second or successive § 2255 motion. The district court then dismissed the § 2255 motion for lack of jurisdiction because Mackey failed to obtain the requisite authorization from this Court, as required by § 2255(h).³

Both the district court and this Court denied a COA.

F. Present § 2241 Petition

In February 2012, Mackey filed an amended pro se habeas petition under § 2241 and the savings clause in § 2255(e), challenging the validity of his § 924(e) sentence. In his § 2241 petition, Mackey argued that, under Begay and Archer, his Florida concealed-firearm convictions did not qualify as violent felonies under § 924(e)(2)(B) and, therefore, he “was convicted of a non-existent offense, i.e., being an armed career criminal.”

The government responded with a confession of error, conceding that Mackey's § 2241 petition had merit and should have been granted. The government argued that this type of claim—asserting a “flat ineligibility” for a § 924(e) sentence exceeding the otherwise applicable statutory maximum of 10 years' imprisonment—was cognizable in a § 2241 petition brought pursuant to § 2255(e)'s savings clause. The government expressly waived “any affirmative defense of procedural default in this case.”

The district court denied Mackey's § 2241 petition with prejudice for the reasons stated in an earlier decision in a similar case, McKinney v. Warden, 870 F.Supp.2d 1351 (M.D.Fla.2012). Through the incorporation of its decision in McKinney, the district court relied on this Court's decision in Gilbert v. United States, 640 F.3d 1293 (11th Cir.2011) (en banc), cert. denied,––– U.S. ––––, 132 S.Ct. 1001, 181 L.Ed.2d 743 (2012), and determined that § 2255(e)'s savings clause did not permit the claims in Mackey's § 2241 petition because Mackey did not claim “actual innocence of the underlying offense (as distinguished from a claim of actual innocence of the sentence).” See McKinney, 870 F.Supp.2d at 1357–59. Accordingly, the district court denied Mackey's § 2241 petition with prejudice.

Mackey now appeals.⁴

II. STANDARD OF REVIEW

“Whether a prisoner may bring a 28 U.S.C. § 2241 petition under the savings clause of § 2255(e) is a question of law we review de novo.” Williams v. Warden, Fed. Bureau of Prisons, 713 F.3d 1332, 1337 (11th Cir.2013). The petitioner bears the burden of demonstrating that the § 2255 remedy was “inadequate or ineffective to test the legality of his detention” for purposes of § 2255(e). Turner v. Warden, 709 F.3d 1328, 1333 (11th Cir.), cert. denied,––– U.S. ––––, 133 S.Ct. 2873, 186 L.Ed.2d 923 (2013).

III. DISCUSSION

Section 2255(e) provides that a § 2241 petition “shall not be entertained” if a federal prisoner has failed to apply for relief by a § 2255 motion, or has already been denied such relief, “ unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e) (emphasis added). This quoted exception to § 2255(e)'s bar on a § 2241 petition is commonly referred to as the “savings clause.”

Where a petitioner seeks to challenge his sentence based on the statutory interpretations of § 924(e) set forth in Begay, Archer, and Canty,⁵ this Court has provided a test to determine whether the savings clause allows a § 2241 petitioner to bring his petition notwithstanding § 2255's strict limitations on second or successive motions. See Bryant, 738 F.3d at 1273–75, 2013 WL 6768086, at *19. To show that his prior § 2255 motion was “inadequate or ineffective to test the legality of his detention,” Mackey must establish that

(1) throughout his sentencing,...