Carlos DeGlace v. Warden, FCC Coleman - Low , 484 F. App'x 307 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-13054 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 11, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 5:10-cv-00346-WTH-KRS
CARLOS DEGLACE,
lllllllllllllllllllllllllllllllllllllll Petitioner-Appellant,
versus
WARDEN, FCC COLEMAN - LOW,
llllllllllllllllllllllllllllllllllllllll Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 11, 2012)
Before TJOFLAT, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Carlos Deglace, a federal prisoner proceeding pro se, appeals the district
court’s dismissal of his petition for writ of habeas corpus filed pursuant to 28 U.S.C.
§ 2241. In his § 2241 petition, Deglace challenged his 1998 convictions and
sentences from the Northern District of Florida for conspiring to possess with intent
to distribute cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and
possessing with intent to distribute cocaine base, in violation of 21 U.S.C. §
841(a)(1). He argued that, pursuant to the Supreme Court’s opinion in United States
v. O’Brien, 130 S.Ct. 2169 (2010), the drug quantities used to determine his sentence
under § 841(b)(1)(A)(iii) were elements of the offense that had to be charged in the
indictment and proved to a jury. The district court dismissed his petition because
Deglace could not show that the savings clause in 28 U.S.C. § 2255(e) applied such
that he could file under § 2241. On appeal, Deglace argues that the district court
erred when it found that the savings clause in § 2255(e) did not apply to allow him
to file his 28 U.S.C. § 2241 petition. After careful review, we affirm.
The availability of habeas relief under § 2241 presents a question of law that
we review de novo. Cook v. Wiley, 208 F.3d 1314, 1317 (11th Cir. 2000). Typically,
collateral attacks on the validity of a federal conviction or sentence must be brought
under § 2255. Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir. 2003). When a
prisoner has previously filed a § 2255 motion to vacate, he must apply for and receive
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permission from the court of appeals before filing a successive § 2255 motion. 28
U.S.C. §§ 2244(b), 2255(h).
A provision of § 2225, however, permits a federal prisoner, under very limited
circumstances, to file a habeas petition pursuant to § 2241. That provision, known
as the “savings clause,” provides that:
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); Gilbert v. United States, 640 F.3d 1293, 1305-06 (11th Cir.
2011) (en banc), cert. denied, 132 S.Ct. 1001 (2012). The burden is on the movant
to establish the inadequacy or ineffectiveness of the § 2255 remedy. McGhee v.
Hanberry, 604 F.2d 9, 10 (5th Cir. 1979).1 “A prisoner in custody pursuant to a
federal court judgment may proceed under § 2241 only when he raises claims outside
the scope of § 2255(a).” Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d 1348, 1351
n.1 (11th Cir. 2008). Thus, “challenges to the execution of a sentence, rather than the
validity of the sentence itself, are properly brought under § 2241.” Id. at 1352.
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In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
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Moreover, a remedy by motion under § 2255 is not rendered “inadequate or
ineffective” simply because an individual is procedurally barred from filing a second
or successive § 2255 motion. Gilbert, 640 F.3d at 1308.
We have previously suggested that a prisoner might bring a § 2241 motion
pursuant to the § 2255(e) savings clause if the Supreme Court decided a “circuit
law-busting, retroactively applicable Supreme Court decision” that established that
he had been convicted of a nonexistent crime. Wofford v. Scott, 177 F.3d 1237, 1245
(11th Cir. 1999); but see Gilbert, 640 F.3d at 1319 (clarifying that this language was
dicta and that “[t]he actual holding of the Wofford decision . . . is simply that the
savings clause does not cover sentence claims that could have been raised in earlier
proceedings”). In addition, we have adopted a standard whereby “the petitioner must
show that he was imprisoned for conduct that was not prohibited; i.e., he must show
that he is actually innocent.” Sawyer, 326 F.3d at 1366. A petitioner may not argue
the merits of his claim until he has “open[ed] the portal” to a § 2241 proceeding by
demonstrating that the savings clause applies to his claim. Wofford, 177 F.3d at 1244
n.3.
In this case, the district court did not err by dismissing Deglace’s § 2241
petition. For starters, the claim that Deglace sought to raise in his § 2241 petition --
that a jury should have been allowed to decide the drug quantity that triggered his
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mandatory minimum sentence under § 841(b)(1)(A)(iii) -- could not be raised in a §
2241 petition without application of § 2255(e)’s savings clause, because it is within
the scope of § 2255. See Antonelli, 542 F.3d at 1351 n.1. Deglace is not challenging
the execution of his sentence, but he is attacking collaterally the validity of his total
sentence, and this type of claim cannot be raised in a § 2241 petition. Id. at 1352. He
acknowledged having filed at least one previous § 2255 motion, which was denied.
Thus, his claim did not fall withing § 2255(e)’s savings clause because it was a
sentencing claim that could have been, and indeed was, raised in an earlier
proceeding. See Gilbert, 640 F.3d at 1319; United States v. Deglace, 353 F.App’x.
310, 311 (11th Cir. 2009). Therefore, Deglace could only have raised this sentencing
issue in a successive § 2255 motion upon permission from this Court. See 28 U.S.C.
§§ 2244(b), 2255(h).
Moreover, Deglace cannot rely upon the Wofford dicta to show that the remedy
available under §2255 was inadequate or ineffective to test the legality of his
detention, because he was not convicted of any crime which a “circuit law-busting,
retroactively applicable Supreme Court decision” has made “nonexistent.” Wofford,
177 F.3d at 1245; Gilbert, 640 F.3d at 1319. As for Deglace’s claim that he is relying
on a new rule of law that comes from the Supreme Court’s decision in O’Brien, the
holding in O’Brien was limited to a rule of statutory construction of §
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924(c)(1)(b)(ii). See O’Brien, 130 S.Ct. at 2180. It concerns only a narrow provision
within § 924(c), and does not apply to Deglace’s conviction for a 21 U.S.C. § 841offense. See id. Deglace has pointed to no case law suggesting that the holding in
O’Brien might be extended to stand for the proposition that the quantity of drugs for
which a defendant is convicted is a question for the jury.
Finally, even assuming that Deglace had shown that O’Brien applied to the
facts of his conviction and was made retroactive, he has not shown that he was
imprisoned for a nonexistent offense. See Wofford, 177 F.3d at 1245. As applied to
Deglace’s case, O’Brien would only clarify the standard necessary to prove the drug
quantities that trigger the mandatory minimum sentences under 21 U.S.C. § 841(b),
and would not invalidate the underlying offenses. See Sawyer, 326 F.3d at 1366(explaining that a claim that merely clarifies the standard by which a defendant may
be found guilty does not open the portal to a § 2241 proceeding). Deglace does not
suggest that he did not actually commit the crimes of distribution and possession with
the intent to distribute cocaine, but makes only a legal argument that a jury should
have been allowed to decide the quantities that were involved in those offenses.
Thus, he has not raised the type of defect that can support a claim under the savings
clause.
AFFIRMED.
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