Williams v. Warden, Federal Bureau of Prisons

• Decision Date: 11 April 2013
• Docket Number: No. 11–13306.,11–13306.
• Citation: 713 F.3d 1332
• Parties: Albert WILLIAMS, Petitioner–Appellant, v. WARDEN, FEDERAL BUREAU OF PRISONS, Respondents–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

713 F.3d 1332

Albert WILLIAMS, Petitioner–Appellant,

v.WARDEN, FEDERAL BUREAU OF PRISONS, Respondents–Appellees.

No. 11–13306.

United States Court of Appeals,Eleventh Circuit.

April 11, 2013.

Merritt Ellen McAlister (Court–Appointed), King & Spalding, LLP, Atlanta, GA, for Petitioner–Appellant.

Seth Michael Schlessinger, Kathleen Mary Salyer, Anne Ruth Schultz, Emily M. Smachetti, U.S. Attys., Miami, FL, R. Brian Tanner, Edward J. Tarver, U.S. Attys., Savannah, GA, for Respondents–Appellees.

Appeal from the United States District Court for the Southern District of Georgia.

Before MARCUS and MARTIN, Circuit Judges, and GOLD,^* District Judge.

MARCUS, Circuit Judge:

Albert Williams appeals the dismissal of his 28 U.S.C. § 2241 petition for habeas corpus, claiming that his 293–month sentence for a violation of 18 U.S.C. § 922(g)(1) and the Armed Career Criminal Act of 1984 (“ACCA”), 18 U.S.C. § 924(e), was improper because he did not have the three violent felony predicates required to apply the ACCA enhancement. Without that enhancement, a § 922(g)(1) offense carries a ten-year maximum sentence. At issue is whether the savings clause of 28 U.S.C. § 2255(e) allowed the district court to entertain Williams's § 2241 petition and, if it did, whether Williams's 1989 and 1990 burglary convictions are proper ACCA predicates.

Notwithstanding the bar on second or successive § 2255 motions, § 2255's savings clause permits a court to entertain a § 2241 habeas petition challenging the legality of a prisoner's detention when the prisoner's “remedy by [§ 2255] motion is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). At the time of Williams's direct appeal and first § 2255 motion, there was no circuit precedent that foreclosed him from raising the claim that his burglary convictions should not count as violent felonies, and in fact he did raise it. In these circumstances,his direct appeal and first collateral attack were not inadequate or ineffective to test the legality of his detention, and the savings clause does not apply. We conclude that the district court lacked subject-matter jurisdiction to entertain Williams's § 2241 petition and, therefore, affirm.

I.

Williams has an extensive criminal history, of which four incidents are relevant to this appeal. In 1986, he pleaded guilty to one count of robbery and two counts of aggravated assault stemming from a single incident. In 1989, he pleaded nolo contendere to burglary of a dwelling, a second-degree felony pursuant to Fla. Stat. § 810.02. In 1990, he again committed burglary of a dwelling; this time, he pleaded guilty to the offense.

Finally, the criminal offense that led to the sentence now before us occurred in 1997, when Miami police officers investigating suspected narcotics activity encountered Williams. After a brief conversation, Williams drew a gun on the officers, who disarmed him.

Williams was indicted in the U.S. District Court for the Southern District of Florida for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Before trial, the government filed a notice of intent to seek the penalty enhancement authorized by the Armed Career Criminal Act, which imposes a minimum sentence of fifteen years and a maximum of life imprisonment for a violation of § 922(g)(1) by a person who has three prior convictions for a violent felony or a serious drug offense. Williams was tried and convicted of the § 922(g)(1) offense in 1998.

Williams's Presentence Investigation Report (“PSR”) recommended applying the ACCA enhancement based on his robbery and burglary convictions. Applying this enhancement, the PSR determined that Williams had an offense level of 33 and a criminal history category of VI. Under the then-mandatory Sentencing Guidelines, his guideline range was 235 to 293 months. During his sentencing, Williams did not object to the ACCA enhancement based on the theory that his prior offenses did not qualify as violent felonies. He received a prison sentence of 293 months. On direct appeal, he also did not raise an objection to the ACCA enhancement. This Court affirmed Williams's conviction and sentence. United States v. Williams, 182 F.3d 936 (11th Cir.1999) (unpublished table op.).

Several failed collateral attacks followed. Williams first sought postconviction relief pursuant to 28 U.S.C. § 2255, arguing that he received ineffective assistance of counsel because his attorney had failed to object to the use of Williams's burglary convictions as predicate offenses to support the ACCA enhancement. He also argued that the Florida crime of burglary of a dwelling fell outside the definition of violent felony because it encompassed conduct beyond “generic burglary” as the Supreme Court had defined it in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The postconviction court denied Williams relief and a certificate of appealability (“COA”). This Court also denied him a COA and denied his motion for reconsideration on March 23, 2004, noting that the use of the “1989 burglary conviction ... was arguably erroneous under Taylor,” but concluding that any possible error was immaterial because Williams's other prior convictions could support the enhancement. The Supreme Court denied certiorari. Williams v. United States, 543 U.S. 864, 125 S.Ct. 195, 160 L.Ed.2d 107 (2004).

After the Supreme Court decided Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), which limited the materials a district court could consult to determine whether a prior conviction was a violent felony under the ACCA, Williams twice unsuccessfully sought Rule 60(b) relief from the denial of his § 2255 motion. In both instances, the district court concluded that it lacked subject-matter jurisdiction to entertain Williams's claim—which asserted, through the lens of ineffective assistance of counsel, that his Fla. Stat. § 810.02 burglary convictions were not violent felonies in light of Taylor and Shepard—because Williams was effectively seeking a second § 2255 motion. Williams then filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the U.S. District Court for the Eastern District of North Carolina. That petition, which reiterated his Taylor and Shepard claims, was also unsuccessful.

After the Supreme Court decided Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), Williams filed still another § 2255 motion. Williams argued that, under Begay, his burglary offenses did not qualify as violent felonies, and that therefore his sentence exceeded the ten-year statutory maximum for his crime of conviction. The district court concluded that it could not entertain this second or successive motion because Williams had not moved this Court for authorization pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), which deprived it of subject-matter jurisdiction. Williams did not appeal this decision.

In November 2010, Williams again collaterally attacked his sentence, filing the instant § 2241 petition in the U.S. District Court for the Southern District of Georgia. Williams contended that, pursuant to the savings clause of § 2255(e), the district court could hear his § 2241 petition and hence decide the Begay claim that he had raised in his second § 2255 motion.

The district court, relying on our en banc decision in Gilbert v. United States, 640 F.3d 1293 (11th Cir.2011), dismissed Williams's petition because it interpreted Gilbert as holding that the savings clause does not authorize any challenge to a prisoner's sentence, only challenges based on actual innocence. Williams timely appealed, and this Court appointed him counsel.

The government initially conceded both before the district court and on appeal that the savings clause applied to the kind of claim Williams sought to bring in his § 2241 petition. Nonetheless, at oral argument we asked the parties to brief whether the district court had subject-matter jurisdiction to entertain his petition pursuant to the savings clause. See Wofford v. Scott, 177 F.3d 1236, 1245 (11th Cir.1999) (“[T]he only sentencing claims that may conceivably be covered by the savings clause are those based upon a retroactively applicable Supreme Court decision overturning circuit precedent.”). Williams asserted that the savings clause issue was nonjurisdictional and thus we should accept the government's initial concession and go to the merits of his claim. Moreover, he said, this Court's ACCA precedents—while not specifically addressing the issue of whether Florida burglary of a dwelling was a violent felony—did foreclose his sentencing claim prior to Begay. In response, the government argued that Williams failed to satisfy Wofford's requirement that his claim be based upon a retroactively applicable Supreme Court decision overturning circuit precedent. The government said that there was no controlling circuit precedent that foreclosed Williams's claim during his direct appeal and that, in any case, none of the Supreme Court's subsequent ACCA decisions cast doubt on whether Fla. Stat. § 810.02 is a violent felony. Thus, the savings clause did not permit Williams's § 2241 petition.

II.

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. Sawyer v. Holder, 326 F.3d 1363, 1365 n. 4 (11th Cir.2003). The applicability of the savings clause is a threshold jurisdictional issue, and we “cannot reach ... questions” that “the district court never had jurisdiction to entertain.” Boone v. Sec'y, Dep't of Corr., 377 F.3d 1315, 1316 (11th Cir.2004). If the savings clause does permit Williams's § 2241 petition, the substantive issue—whether his prior convictions qualify as violent felonies under the Armed Career Criminal Act—is also a question of law we review de novo. United States v. Canty, 570 F.3d 1251, 1254 (11th Cir.2009).

A.

...