McCarthan v. Warden, FCI Estill

• Decision Date: 20 January 2016
• Docket Number: No. 12–14989.,12–14989.
• Citation: 811 F.3d 1237
• Parties: Dan Carmichael McCARTHAN, Petitioner–Appellant, v. WARDEN, FCI ESTILL, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

811 F.3d 1237

Dan Carmichael McCARTHAN, Petitioner–Appellant,

v.WARDEN, FCI ESTILL, Respondent–Appellee.

No. 12–14989.

United States Court of Appeals, Eleventh Circuit.

Jan. 20, 2016.

Dan Carmichael McCarthan, FCI Estill–Inmate Legal Mail, pro se.

Roberta Josephina Bodnar, U.S. Attorney's Office, Orlando, FL, Todd B. Grandy, Robert E. O'Neill, Sara C. Sweeney, U.S. Attorney's Office, Tampa, FL, Lisa A. Hirsch, U.S. Attorney's Office, Miami, FL, for Respondent–Appellee.

Before MARTIN and ROSENBAUM, Circuit Judges, and PROCTOR,^* District Judge.

PER CURIAM:

In 2003, Petitioner Dan McCarthan pled guilty to being a felon-in-possession of a firearm. The maximum sentence for a felon-in-possession conviction is ten years' imprisonment. 18 U.S.C. § 924(a)(2). But the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), requires sentencing courts to impose a term of imprisonment no lower than 15 years when a defendant has three prior convictions that qualify as serious drug offenses or violent felonies under the ACCA. 18 U.S.C. § 924(e). At the time of his sentencing, McCarthan had five prior convictions that arguably qualified him for an ACCA enhancement, including a 1992 Florida escape conviction. So the sentencing court enhanced McCarthan's sentence to 211 months' imprisonment under the ACCA.

Rather than appeal his sentence directly, McCarthan filed an initial habeas petition under 28 U.S.C. § 2255, collaterally attacking his sentence on grounds of ineffective assistance of counsel. McCarthan's habeas petition was denied, and we subsequently denied him leave to file a second petition under § 2255.

Then, in 2009, the Supreme Court issued its decision in Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), concluding that at least some escape convictions do not qualify as ACCA predicate convictions. Following the issuance of Chambers, McCarthan filed the § 2241 habeas petition at issue here. As a federal prisoner, McCarthan was required to meet the 28 U.S.C. § 2255(e)"savings clause" in order to permit the district court to entertain his § 2241 petition. The district court determined that McCarthan failed to meet the "savings clause" and dismissed his petition for lack of jurisdiction.

McCarthan now appeals the district court's order dismissing his petition. For the reasons below, we affirm the district court's order and likewise conclude that the district court lacked jurisdiction to entertain McCarthan's petition.

BACKGROUND

On April 9, 2002, McCarthan was indicted for possessing a Winchester rifle, in violation of 18 U.S.C. § 922(g), the statute prohibiting felons from possessing firearms. The indictment alleged that McCarthan knowingly possessed the rifle despite the fact that he had three prior felony convictions, including a 1987 conviction in Florida for possession of cocaine with intent to sell or deliver; a 1992 conviction in Florida for escape; and a 1994 conviction in Florida for third-degree murder. Rather than contest the charge, McCarthan entered a guilty plea on March 4, 2003.

In general, the maximum penalty for violating the felon-in-possession statute is ten years' imprisonment. 18 U.S.C. § 924(a)(2). But the ACCA provides that an individual who violates the statute and who has "three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another" must be sentenced to at least 15–years' imprisonment. 18 U.S.C. § 924(e)(1).

Before McCarthan's sentencing, a probation officer prepared a presentence investigation report ("PSR"). The criminal-history section of the PSR listed the three felony convictions set forth in the indictment, two 1988 felony convictions in Georgia for possession of cocaine with intent to distribute, and convictions for lesser offenses. Although the probation officer concluded, based on McCarthan's criminal history, that McCarthan was subject to an enhanced sentence under the ACCA, the probation officer did not specify which of McCarthan's prior felony convictions qualified him for the penalty.

Before his sentencing hearing, McCarthan objected to the probation officer's conclusion that he was subject to the ACCA, arguing that the 1992 escape conviction in Florida was not a violent felony. In response, the probation officer modified the PSR to say,

The Eleventh Circuit has held that a prior escape conviction, even one involving a "walkaway" from a non-secure facility, qualifies as a "crime of violence." United States v. Gay, 251 F.3d 950 (11th Cir.2001). Incidentally, every other circuit to rule on this issue has held that escape is a crime of violence.

The government did not object to the PSR.

On June 4, 2003, McCarthan had his sentencing hearing. During the hearing, McCarthan objected to the probation officer's calculation of his base offense level. McCarthan also objected to the probation officer's addition of one criminal-history point for a 1993 sentence for opposing an officer without violence, but the probation officer had already corrected the PSR to remove that point. Otherwise, McCarthan's attorney stated that McCarthan had no further objections to the factual allegations in the PSR or the probation officer's Sentencing Guidelines calculation. McCarthan's attorney did not raise his earlier written objection regarding the 1992 escape conviction or otherwise object to the imposition of an ACCA enhancement.

The sentencing judge adopted the remaining facts in the PSR, imposed an ACCA enhancement, and sentenced McCarthan to 211 months' imprisonment. In imposing sentence, the district judge, like the PSR, did not expressly identify which of McCarthan's prior convictions qualified as predicate offenses for purposes of the ACCA enhancement.

McCarthan did not directly appeal his sentence. Instead, on June 7, 2004, he filed a motion to vacate the sentence under 28 U.S.C. § 2255, alleging ineffective assistance of counsel.¹ That motion did not address the ACCA enhancement, and the district court denied the motion on the merits on September 30, 2004.² The district court and this Court then denied McCarthan's request for a certificate of appealability.³ And on February 13, 2006, we denied McCarthan's petition for leave to file a successive § 2255 petition.⁴

After our denial of McCarthan's 2006 petition, the Supreme Court issued two decisions narrowing the class of crimes that qualify as violent felonies under the ACCA. In 2008, the Supreme Court held that the New Mexico crime of driving under the influence is not a "violent felony" under the ACCA. See Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). A year later, the Supreme Court held that some forms of the Illinois crime of "escape from a penal institution" also do not qualify as violent felonies under the ACCA. See Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009).

On March 5, 2009, McCarthan filed a § 2241 habeas petition asserting, without explanation, that he was wrongly sentenced as an armed career criminal. McCarthan filed an amended petition on June 19, 2009, clarifying that he believed he was wrongly sentenced because his 1992 escape conviction was no longer a violent felony under the Supreme Court's retroactively applicable decisions in Chambers and Begay.

The government responded that the district court lacked jurisdiction to hear McCarthan's § 2241 petition. Observing that only petitioners who can show that the remedy provided for under § 2255 is inadequate or ineffective to test the legality of their detention may pursue a remedy under § 2241, see 28 U.S.C. § 2255(e), the government argued that McCarthan could not meet that threshold requirement. Even without the escape conviction, the government reasoned, McCarthan still had four predicate offenses for purposes of the ACCA—the two remaining Florida convictions and the two Georgia drug convictions. The district court agreed that it lacked jurisdiction to entertain McCarthan's § 2241 petition because McCarthan had "other convictions for crimes that remain classified as ‘violent felonies' under [the ACCA]." McCarthan now appeals that Order.

ANALYSIS

A federal prisoner seeking to collaterally attack his sentence must, in most instances, pursue relief under 28 U.S.C. § 2255. Section 2255 grants federal prisoners a cause of action to challenge their sentences as unconstitutional or otherwise unlawful and delineates the procedure for adjudicating these actions. Id. In addition, the so-called "savings clause" contained in § 2255(e) allows a federal court to entertain a federal prisoner's § 2241 habeas petition in the limited circumstances where the prisoner demonstrates that the remedy in § 2255"is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). We have held that § 2255(e) imposes a jurisdictional restriction on a federal court's power to entertain a § 2241 petition. Williams v. Warden, Fed. Bureau of Prisons, 713 F.3d 1332, 1337 (11th Cir.2013), cert. denied sub nom. Williams v. Hastings, ––– U.S. ––––, 135 S.Ct. 52, 190 L.Ed.2d 29 (2014).

As a result, McCarthan's appeal of the district court's denial of his § 2241 habeas petition potentially presents two issues: (1) whether jurisdiction under § 2255(e) exists to entertain McCarthan's § 2241 claim; and (2) if so, whether McCarthan is entitled to relief on the merits of his § 2241 petition. Because we conclude that the district court lacked jurisdiction to hear McCarthan's § 2241 petition, we do not reach the merits of McCarthan's petition.

I. The Savings Clause and Section 2241

Federal courts, of course, are courts of limited jurisdiction, "possess[ing] only that power authorized by Constitution and statute." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994). For this reason, before turning to the merits of any dispute, a federal court must determine whether Congress or the Constitution empowered it to...