Nipper v. Warden, FCC Coleman-Medium, CASE NO. 5:10-cv-237-10TBS
| Decision Date | 01 May 2012 |
| Docket Number | CASE NO. 5:10-cv-237-10TBS |
| Parties | DONNIE WAYNE NIPPER, Petitioner, v. WARDEN, FCC Coleman-Medium Respondent. |
| Court | U.S. District Court — Middle District of Florida |
Petitioner Donnie Wayne Nipper ("Petitioner"), an inmate currently incarcerated at the Coleman Federal Correctional Complex in Coleman, Florida, filed an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. 3, filed June 21, 2010). He brings this action to challenge the sentence imposed for his 2005 convictions in the Middle District of North Carolina for unlawfully transporting a stolen vehicle in violation of 18 U.S.C. § 2312 and knowingly possessing a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (MDNC Case No. 1:04-cr-434-JAB).1 Petitioner argues that his sentence for knowingly possessing a firearm as a convicted felon was improperly enhanced under the Armed Career Criminal Act ("ACCA") at his 2005 sentencing because subsequent United States Supreme Court decisions have determined that the underlying convictions used to do so were not predicate felonies for enhancement under the ACCA.
Respondent has filed a response asserting that the petition should be denied because, notwithstanding the subsequent Supreme Court decisions, Petitioner has sufficient qualifying prior convictions to justify the enhancement (Doc. 11). Petitioner hasfiled a reply and several supplements to the reply (Doc. 15, 17, 18, and 20).
Upon due consideration, the Court determines that the petition is due to be dismissed as an improper filing under § 2241. If the petition were not due to be dismissed, it would fail on the merits.
On October 26, 2004, Petitioner was indicted for violations of 18 U.S.C. § 2312, interstate transportation of stolen vehicles (counts one and two) and 18 U.S.C. § 922(g)(1), possession of a firearm by a convicted felon (Cr. Doc. 1, 14). Pursuant to a plea agreement, Petitioner pleaded guilty to counts I and III of the indictment (Cr. Doc. 14). On May 12, 2005, Petitioner was sentenced to 120 months imprisonment on count one and a concurrent sentence of 195 months imprisonment on count three (Cr. Doc. 20). Petitioner appealed the district court's determination that he qualified for sentencing as an armed career criminal under 18 U.S.C. § 924(e), and the Fourth District Court of Appeal affirmed. United States v. Nipper, 169 Fed. Appx. 174 (4th Cir. 2006).
On October 2, 2008, Petitioner filed a motion pursuant to 28 U.S.C. § 2255, seeking to vacate his sentence, but the motion was denied (Cr. Doc. 45, 65). Petitioner's subsequent request to the Fourth Circuit for permission to file a successive motion to vacate was denied (Cr. Doc. 69, 70).
On June 1, 2010, Petitioner filed the instant petition, which he subsequently amended, seeking habeas corpus relief pursuant to 28 U.S.C. § 2241.
Petitioner alleges that the ACCA enhancement to his sentence in count three was improper pursuant to the United States Supreme Court's decisions in Begay v. UnitedStates, 553 U.S. 137 (2008), Chambers v. United States, 129 S.Ct. 687 (2009), and Johnson v. United States, 130 S.Ct. 1265 (2010) (Doc. 3 at 10). Specifically, Petitioner asserts that in light of those cases, his prior convictions for felonious escape, felonious breaking and entering, and felonious common law robbery no longer qualify as "violent felonies" and cannot be used as ACCA predicate offenses (Doc. 3 at 18). Respondent contends that, even assuming that Petitioner's conviction for felonious escape from a work release prison no longer qualifies as a predicate offense under Chambers, Petitioner still has sufficient predicate offenses to qualify as an armed career criminal (Doc. 11 at 2-3).
Petitioner has styled this action as a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241, which provides a means for a prisoner to challenge the execution of his sentence. Here, however, Petitioner challenges the validity of his 195 month sentence for possession of a firearm by a convicted felon because he claims the sentence was "improperly enhanced." Ordinarily, an action in which an individual seeks to collaterally attack his conviction should be filed under 28 U.S.C. § 2255 in the district of conviction. 28 U.S.C. § 2255(a); Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir. 2003). Because Petitioner's previous § 2255 motion was denied by "the court which imposed [his] sentence," Petitioner may not file another § 2255 motion without first receiving permission from the appropriate United States Court of Appeals. 28 U.S.C. § 2255(h). Petitioner unsuccessfully sought permission to file a successive § 2255 motion in the Fourth Circuit Court of Appeals(Cr. Doc. 69, 70). Because Petitioner is now barred from filing this motion under § 2255, he filed the instant petition pursuant to 28 U.S.C. § 2241. However, § 2255(e) expressly limits the circumstances under which a federal prisoner may file such apetition. Petitioner argues that he is entitled to bring this § 2241 petition under the "savings clause" or "safe harbor provision" of § 2255(e).
Under § 2255(e)'s savings clause, a prisoner may file a § 2241 petition if an otherwise available remedy under § 2255 is inadequate or ineffective to test the legality of his detention. The clause provides as follows:
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.
28 U.S.C. § 2255(e) (emphasis added). In Wofford v. Scott, the Eleventh Circuit interpreted this provision to mean that the savings clause applies when: (1) a claim is based upon a retroactively applicable Supreme Court decision; (2) the holding of the Supreme Court decision establishes that the petitioner was convicted for an offense that is now nonexistent; and (3) circuit law squarely foreclosed such a claim at the time it otherwise should have been raised in the trial, appeal, or first § 2255 motion. 177 F.3d 1236, 1244 (11th Cir. 1999). All three Wofford requirements must be met before the savings clause may be utilized to seek habeas relief. See Dean v. MacFadden, 133 Fed. Appx. 640, 642 (11th Cir. 2005).2 Once the savings clause of § 2255(e) applies to open the portal to a § 2241 proceeding, the inquiry is whether the petitioner can establish actual innocence of the crime for which he has been convicted. Wofford, 177 F.3d at 1244 n.3.
Under these requirements, the only sentencing claims in the Eleventh Circuit "that may conceivably be covered by the savings clause are those based upon a retroactively applicable Supreme Court decision overturning circuit precedent." Wofford, 177 F.3d at 1245; see also Edwards v. Warden, FCC Coleman-Medium, 432 Fed. Appx. 897, 899 (11th Cir. 2011) ().
Petitioner has the burden of coming forward with evidence affirmatively showing the inadequacy or ineffectiveness of a motion brought under § 2255. Gaines v. Warden, FCC Coleman USP 1, 380 Fed. Appx. 812, 814 (11th Cir. 2010) (citing McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979)). Petitioner argues that the safe harbor provision applies because his 195 month sentence was above the statutory maximum for his violation of 18 U.S.C. § 922(g)(1). Indeed, the statutory maximum sentence for possession of a firearm in violation of 18 U.S.C. § 922(g)(1) is ten years. See 18 U.S.C. § 924(a)(2). However, Congress legislated in the Armed Career Criminal Act of 1984, that a statutory minimum sentence of 15 years imprisonment is mandatory if a felon convicted of a possession of a firearm also has three or more prior "violent felony" or "serious drug offense" convictions. See 18 U.S.C. § 924(e). At the time of his conviction for possession of a firearm, Petitioner had three prior qualifying convictions, and in accord with the ACCA enhancement, the district court sentenced him to a term of imprisonment exceeding the ten year statutory maximum under § 924(a)(2). Therefore, this Court agrees that Petitioner was sentenced in excess of the statutory maximum if he did not qualify for the ACCA enhancement. However, if Petitioner's enhanced sentence remains supported by sufficient qualifying predicate offenses, as alleged by Respondent, the second prong of Woffordwould not apply, and the § 2241 petition could not proceed.3
Petitioner alleges that the ACCA enhancement to his sentence in count three was improper pursuant to the United States Supreme Court's decisions in Begay, 553 U.S. at 137 (), Chambers, 129 S.Ct. at 687 (), and Johnson, 130 S.Ct. at 1265(concluding that a conviction under Florida's battery statute was not necessarily a "violent felony" under the ACCA because the element of actually and intentionally touching under Florida's battery law is satisfied by any intentional physical contact, no matter how slight) (Doc. 3 at 10). In Begay, the Supreme Court "held that a violent felony must involve 'purposeful' conduct." 553 U.S. at 143. Chambers reiterated the rule that a violent felony within the ACCA must be "purposeful, violent, and aggressive." 129 S.Ct. at 692.
As an initial matter, it is not clear that these cases have been made retroactively applicable on collateral review so as to satisfy the first prong...
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