McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc.

• Decision Date: 14 March 2017
• Docket Number: No. 12-14989,12-14989
• Citation: 851 F.3d 1076
• Parties: Dan Carmichael MCCARTHAN, Petitioner-Appellant, v. DIRECTOR OF GOODWILL INDUSTRIES-SUNCOAST, INC., Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

851 F.3d 1076

Dan Carmichael MCCARTHAN, Petitioner-Appellant,

v.DIRECTOR OF GOODWILL INDUSTRIES-SUNCOAST, INC., Respondent-Appellee.

No. 12-14989

United States Court of Appeals, Eleventh Circuit.

March 14, 2017

Sonya Rudenstine, Law Office of Sonya Rudenstine, GAINESVILLE, FL, for Petitioner-Appellant.

Roberta Josephina Bodnar, U.S. Attorney's Office, ORLANDO, FL, Todd B. Grandy, Robert E. O'Neill, Sara C. Sweeney, TAMPA, FL, Lisa A. Hirsch, U.S. Attorney's Office, MIAMI, FL, for Respondent-Appellee.

David Charles Frederick, Jeffrey A. Love, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., WASHINGTON, DC, Amicus Curiae for NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS.

Taylor A.R. Meehan, Bartlit Beck Herman Palenchar & Scott, LLP, CHICAGO, IL, Court Appoint Amicus Curiae.

Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges.

WILLIAM PRYOR, Circuit Judge:

This appeal requires us to decide whether a change in caselaw entitles a federal prisoner to an additional round of collateral review of his sentence. Congress gives a federal prisoner like Dan McCarthan one opportunity to move to vacate his sentence unless that remedy is "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). When McCarthan pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g), he understood that the district court would enhance his sentence under the Armed Career Criminal Act, id. § 924(e). He did not appeal that sentence. When McCarthan later moved to vacate his sentence, he again said nothing about the enhancement. After foregoing those opportunities to complain about the enhancement of his sentence, McCarthan petitioned for a writ of habeas corpus. McCarthan argues that his earlier motion to vacate was inadequate to test his objection to his sentence enhancement because our caselaw about the Armed Career Criminal Act has changed. But because the motion to vacate gave McCarthan an opportunity to challenge his sentence enhancement, his remedy was not inadequate or ineffective to test the legality of his sentence, regardless of any later change in caselaw.

For eighteen years, our Court has maintained that a change in caselaw may trigger an additional round of collateral review, see Wofford v. Scott , 177 F.3d 1236 (11th Cir. 1999), but our precedents have ignored the text of the statute. As we struggled to apply our precedents, we employed a five-factor test and granted relief only twice. See Mackey v. Warden, FCC Coleman-Medium , 739 F.3d 657 (11th Cir. 2014) ; Bryant v. Warden, FCC Coleman-Medium , 738 F.3d 1253 (11th Cir. 2013). Because our precedents have failed to adhere to the text of section 2255(e), have not incurred significant reliance interests, and have proved unworkable, today we overrule them. We join the Tenth Circuit in applying the law as Congress wrote it, see Prost v. Anderson , 636 F.3d 578 (10th Cir. 2011) (Gorsuch, J.), and hold that a change in caselaw does not make a motion to vacate a prisoner's sentence "inadequate or ineffective to test the legality of his detention," 28 U.S.C. § 2255(e). We affirm the dismissal of McCarthan's petition for a writ of habeas corpus.

I. BACKGROUND

In 2003, Dan McCarthan pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g), the maximum sentence for which is ten years imprisonment, id. § 924(a)(2). The district court enhanced McCarthan's sentence under the Armed Career Criminal Act, id. § 924(e), on the ground that he had five prior convictions for a "serious drug offense" or a "violent felony," id. § 924(e)(1), including one for escape. United States v. McCarthan , No. 8:02-cr-137 (M.D. Fla. June 4, 2003). McCarthan received a sentence of 211 months. Id. He did not appeal. Id.

McCarthan later moved to vacate his sentence, 28 U.S.C. § 2255. He alleged that he had received ineffective assistance of counsel, but he did not challenge the enhancement of his sentence. The district court denied the motion to vacate on the merits. McCarthan v. United States , No. 8:04-cv-1288 (M.D. Fla. Sept. 30, 2004). Both the district court and this Court denied his request for a certificate of appealability. See id.

In 2009, the Supreme Court ruled that some forms of the crime of escape do not qualify as a "violent felony" under the Armed Career Criminal Act. Chambers v. United States , 555 U.S. 122, 130, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). Chambers overturned our circuit precedent, United States v. Gay , 251 F.3d 950 (11th Cir. 2001), that even "walkaway" escape qualified as a violent felony. Id. at 954–55. Because Chambers involved statutory interpretation, McCarthan could not bring a second motion to vacate under section 2255(h). Instead, he filed a petition for a writ of habeas corpus, 28 U.S.C. § 2241. Both the district court and the panel applied a test we first enunciated in Wofford that would allow a federal prisoner to petition for a writ of habeas corpus if a later decision of the Supreme Court abrogates circuit precedent that had foreclosed the prisoner's argument when he first moved to vacate his sentence.

The district court could have exercised jurisdiction over McCarthan's petition only if it fell within the saving clause of section 2255(e). McCarthan argued that Chambers "ma[de] [him] actually innocent" of the sentencing enhancement and made him eligible for relief under the saving clause. The district court dismissed the petition because McCarthan's other convictions ensured that his sentence did not exceed the statutory maximum. McCarthan v. Warden, FCC Coleman-Medium , 5:09-cv-110 (M.D. Fla. Jan. 11, 2012).

We affirmed the dismissal of McCarthan's petition. McCarthan v. Warden, FCI Estill , 811 F.3d 1237, 1242 (11th Cir. 2016), reh'g en banc granted, op. vacated , No. 12-14989, 2016 WL 3878151 (11th Cir. May 24, 2016). The panel opinion explained that McCarthan's petition did not satisfy the requirements of the Wofford test because he had at least three other convictions that triggered his enhanced sentence. Id. at 1256–57. But the panel disagreed about how to apply the Wofford test. Compare id. at 1246–47, with id. at 1257–59 (Proctor, J., concurring).

McCarthan filed a petition for rehearing en banc, and we granted it. We instructed the parties to brief three issues: (1) do our precedents erroneously interpret the saving clause, 28 U.S.C. § 2255(e) ; (2) what is the correct interpretation of the saving clause; and (3) applying the correct standard, is McCarthan entitled to petition for a writ of habeas corpus? Because both McCarthan and the Warden argued that the Wofford test or some version of it is correct, we appointed Taylor Meehan as amicus curiae to argue that our precedents erroneously interpreted the saving clause. We thank Ms. Meehan for her superb brief and oral argument in keeping with the highest tradition of the legal profession.

On October 17, 2016, we granted McCarthan's unopposed motion to substitute the Director of Goodwill Industries-Suncoast, Inc. as the Respondent-Appellee. McCarthan was transferred from FCI Estill to the custody of the Director of Goodwill Industries-Suncoast, Inc., a Bureau of Prisons Residential Reentry Center (more commonly known as a halfway house). McCarthan is still "in custody," for purposes of our jurisdiction. 28 U.S.C. § 2255(a).

II. STANDARD OF REVIEW

Whether a prisoner may bring a petition for a writ of habeas corpus under the saving clause of section 2255(e) is a question of law we review de novo . Williams v. Warden, Federal Bureau of Prisons , 713 F.3d 1332, 1337 (11th Cir. 2013). The petitioner bears the burden of establishing that the remedy by motion was "inadequate or ineffective to test the legality of his detention." Turner v.Warden Coleman FCI (Medium) , 709 F.3d 1328, 1333 (11th Cir. 2013) (quoting 28 U.S.C. § 2255(e) ), abrogated on other grounds by Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015).

III. DISCUSSION

Since 1948, Congress has required that a federal prisoner file a motion to vacate, 28 U.S.C. § 2255, instead of a petition for a writ of habeas corpus, id. § 2241, to collaterally attack the legality of his sentence. See Pub. L. No. 80-773, 62 Stat. 869, 967–68. A motion to vacate allows a prisoner to contest his sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Section 2255(e) makes clear that a motion to vacate is the exclusive mechanism for a federal prisoner to seek collateral relief unless he can satisfy the "saving clause" at the end of that subsection:

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

Id. § 2255(e) (emphasis added). "[S ]aving [, not savings,] is the precise word" for "a statutory provision exempting from coverage something that would otherwise be included," Bryan A. Garner, Garner's Dictionary of Legal Usage 797 (3d ed. 2011); it has nothing to do with saving a statute from unconstitutionality, see, e.g. , 28 U.S.C. § 1333(1) ("saving to suitors in all cases all other remedies to which they are otherwise entitled").

To determine whether a change in caselaw can satisfy the saving clause of section 2255(e), we consider three matters. First, we explain how we (and other circuits) have interpreted the saving clause. Second, we explain why our...