Tiras N. Hardy v. United States , 443 F. App'x 489 ( 2011 )


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  •                                                           [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________           FILED
    U.S. COURT OF APPEALS
    No. 09-16180         ELEVENTH CIRCUIT
    OCTOBER 19, 2011
    Non-Argument Calendar
    JOHN LEY
    ________________________          CLERK
    D. C. Docket Nos. 08-22496-CV-JIC
    02-20130 CR-JIC
    TIRAS N. HARDY,
    Petitioner-Appellant,
    versus
    UNITED STATES OF AMERICA,
    Respondent-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    _________________________
    (October 19, 2011)
    Before DUBINA, Chief Judge, MARCUS and ANDERSON, Circuit Judges.
    PER CURIAM:
    Appellant, Tiras Hardy appeals the district court’s denial of his Federal Rule
    of Civil Procedure 60(b) motion to vacate the judgment denying his previously
    filed 
    28 U.S.C. § 2255
     motion. In this appeal, Hardy argues that the district court
    erred in (1) denying his Rule 60(b) motion on the ground that the motion was in
    substance a successive § 2255 motion; and (2) denying his request to treat his Rule
    60(b) motion as a petition pursuant to 
    28 U.S.C. § 2241
    . For the reasons that
    follow, we affirm.
    I.
    In the underlying criminal prosecution, Hardy was charged with and pled
    guilty to two substantive counts of possession of cocaine with intent to distribute,
    in violation of 
    21 U.S.C. § 841
    . The district court sentenced Hardy as a career
    offender in light of a prior conviction for carrying a concealed weapon, which at
    the time constituted a qualifying crime of violence under U.S.S.G. § 4B1.1, and
    based on a prior conviction for possession of cocaine with intent to distribute.
    There is no dispute as to whether Hardy did in fact commit these two offenses.
    Due to the career offender designation, Hardy’s criminal history designation
    increased from V to VI, and his base offense level increased from level 26 to 32,
    which the district court reduced to 29 based on Hardy’s acceptance of
    responsibility for his crimes. The guideline range for a base offense level of 29
    was 151 to 188 months of imprisonment. Without career offender status, Hardy
    would have had a base offense level of 23 and a criminal history category of V,
    2
    which would have made the guideline range for his sentence 84 to 105 months.
    The district court subsequently sentenced Hardy to 151 months of incarceration.
    Hardy appealed his sentence and claimed that his classification as a career
    offender was erroneous because a conviction for carrying a concealed weapon was
    not a qualifying crime of violence under U.S.S.G. § 4B1.1. This court affirmed.
    After this court denied his appeal, Hardy filed a motion to vacate his
    sentence under 
    28 U.S.C. § 22551
    . In this motion, Hardy again raised his claim
    that his classification as a career offender was in error because his prior conviction
    for carrying a concealed weapon was not a crime of violence. The district court
    denied this motion, and Hardy did not appeal. Thereafter, Hardy filed a Rule
    60(b)(5) motion which he entitled “Motion to Vacate Judgment, Entered and
    Resting on a Legal Principle After the Supreme Court’s Abrogation that Can No
    Longer Under Those Bases Be Sustained.” In this motion, he asserted that in light
    of the Supreme Court’s decision in Begay v. United States, 
    553 U.S. 137
    , 
    128 S. Ct. 1581
     (2008), and this court’s decision in United States v. Archer, 
    531 F.3d 1347
     (11th Cir. 2008)2, he is “actually innocent” of being a career offender and
    1
    This section allows federal prisoners to claim a right to be released from imprisonment on the
    grounds that “the sentence was imposed in violation of the Constitution or the laws of the United
    States . . . or is otherwise subject to collateral attack.” 
    28 U.S.C. § 2255
    (a).
    2
    This court in Archer held that a conviction for carrying a concealed firearm is not a crime of
    violence for the purposes of career offender enhancement in determining the sentence of a federal
    prisoner in accordance with the Federal Sentencing Guidelines. Archer, 
    531 F. 3d at 1352
    .
    3
    was thus improperly sentenced. However, the district court characterized Hardy’s
    motion as a successive motion to vacate brought under 
    28 U.S.C. § 2255
     and not
    as a Rule 60(b) motion to vacate the sentence. Therefore, the district court
    dismissed Hardy’s motion for lack of subject matter jurisdiction because his
    motion did not meet the requirements of the savings clause– which allows
    prisoners to bring a successive § 2255 motion in limited circumstances as a
    petition for habeas corpus under 
    28 U.S.C. § 2241
    – and the Eleventh Circuit had
    not given Hardy permission to file a successive § 2255 motion. See 
    28 U.S.C. § 2255
    (h) (referring to 
    28 U.S.C. § 2244
    (a)(3)(B)). Hardy appealed, and the district
    court granted a certificate of appealability (“COA”).
    II.
    “The availability of habeas relief under § 2241 presents a question of
    law;” thus, this court conducts a de novo review. Darby v. Hawk-Sawyer, 
    405 F.3d 942
    , 944 (11th Cir. 2005).
    III.
    Collateral attacks on the legality of a federal sentence typically must be
    brought under § 2255. Id. Courts must look past the label of a motion in order to
    determine its actual legal effect and must treat the motion according to its legal
    effect, rather than its formal name. United States v. Jordan, 
    915 F.2d 622
    , 624–25
    4
    (11th Cir. 1990). Rule 60(b) motions cannot be used to “evade the second or
    successive petition bar . . . by either adding a new ground for relief or attacking
    the federal court’s previous rejection of a claim on the merits.” Gilbert v. United
    States, 
    640 F.3d 1293
    , 1323 (11th Cir. 2011) (en banc) (holding that the rule
    espoused in Gonzalez v. Crosby, 
    545 U.S. 524
     (2005), which decided that state
    prisoners could not circumvent the bar on successive habeas petitions by filing
    Rule 60(b) motions, applies equally to federal prisoners). Therefore, when a
    federal prisoner seeks to “assert or reassert a claim for relief, instead of pointing
    out a defect in the integrity of the earlier § 2255 motion preceding in his case . . .
    his motion is the equivalent of a second or successive motion . . . .” Id.
    Hardy’s first § 2255 motion brought a claim that he was improperly
    sentenced based on an inappropriate determination that he was a career offender.
    The district court denied the motion on October 26, 2004, and Hardy did not
    appeal. Hardy has now filed another motion to vacate his sentence and argues the
    exact same issue as in his first § 2255 motion. Though he masks this motion as a
    Rule 60(b) motion, it is attacking a previous rejection of the claim on the merits.
    Regardless of Hardy’s label of the motion, it is a § 2255 challenge to the legality
    of Hardy’s sentence. Therefore, it must be analyzed according to the rules set out
    in 
    28 U.S.C. § 2255
     for second or successive motions.
    5
    A second or successive motion cannot be entertained by the district court
    unless it has first been certified by the appropriate court of appeals as containing
    newly discovered evidence that, if proven and viewed in
    light of the evidence as a whole, would be sufficient to
    establish by clear and convincing evidence that no
    reasonable factfinder would have found the movant guilty
    of the offense; or a new rule of constitutional law, made
    retroactive to cases on collateral review by the Supreme
    Court, that was previously unavailable.
    
    28 U.S.C. § 2255
    (h) (2011). Hardy did not obtain this court’s authorization for a
    second or successive § 2255 motion. Furthermore, this court would not be able to
    grant such authorization because Hardy cannot satisfy either requirement in §
    2255(h). There is no argument that newly discovered evidence exists, and Hardy
    does not claim that he is innocent of the crime for which he was convicted. See
    Gilbert, 640 F. 3d at 1318. Therefore, the district court lacked subject matter
    jurisdiction to entertain this motion. Farris v. United States, 
    333 F.3d 1211
    , 1216
    (11th Cir. 2003). However, § 2255(e) does contain a savings clause that will
    allow a federal prisoner to bring a second or successive habeas motion under 
    28 U.S.C. § 2241
     in certain limited situations without fulfilling the requirements of
    28 § 2255(h). 
    28 U.S.C. § 2255
    (e) (2011).
    Pursuant to the savings clause found in § 2255(e), a second or successive §
    2255 motion can be heard by a district court absent authorization by a court of
    6
    appeals if the federal prisoner can establish that the remedy provided under § 2255
    is “inadequate or ineffective to test the legality of his detention.” 
    28 U.S.C. § 2255
    (e); Darby, 
    405 F.3d at 945
    . In order to take advantage of the savings clause,
    the federal prisoner must file a § 2241 petition attacking his conviction and
    sentence. Darby, 
    405 F.3d at 945
    . However, “[t]he existence of the statutory bar
    on second and successive motions cannot mean that § 2255 is inadequate or
    ineffective to test the legality of [Hardy’s] detention within the meaning of the
    savings clause.” Gilbert, 640 F. 3d at 1308 (internal quotation marks omitted). As
    we recently decided in Gilbert, with facts strikingly similar to the current case, the
    savings clause of § 2255(e) does not permit a prisoner to bring a claim in a § 2241
    petition that the Federal Sentencing Guidelines have been misapplied in
    determining his sentence if that claim is unavailable because of § 2255(h)’s bar on
    second or successive § 2255 motions. Id. at 1322–23.
    Here, had Archer been decided at the time of Hardy’s sentencing, he would
    not have been sentenced as a career offender; however, Hardy’s motion seeks to
    assert or reassert a claim for relief and does not point out a defect in the earlier §
    2255 proceeding. Therefore, it is an impermissible second or successive § 2255
    motion that runs afoul of the bar on such motions absent authorization from the
    court of appeals. The statute precludes a different outcome despite the intervening
    7
    change in the case law interpreting the Federal Sentencing Guidelines. Id. at
    1318.
    Finally, some circuits have broadened the aforementioned “actual
    innocence” statutory exception found in §2255(h) by utilizing the savings clause
    in § 2255(e) to include those situations in which a federal prisoner is confined for
    an offense that subsequent case law determines does not constitute a crime. Id. at
    1318–19. This court has also shown a willingness to allow a prisoner to bring a §
    2241 motion pursuant to the § 2255(e) savings clause if the Supreme Court
    decided a “retroactively applicable, circuit law-busting decision” that “established
    that he had been convicted of a nonexistent crime.” Id. at 1319 (citing Wofford v.
    Scott, 
    177 F. 3d 1236
    , 1242–45 (11th Cir. 1998)) (emphasis added). However, a
    jury of his peers convicted Hardy of two counts of possessing cocaine with intent
    to distribute, and no case law has determined that these offenses do not constitute
    crimes. Moreover, the “actual innocence” exception has only been applied to
    errors in sentencing when a “constitutional error resulted in the petitioner
    becoming statutorily eligible for a death sentence that could not otherwise have
    been imposed.” Sawyer v. Whitley, 
    505 U.S. 333
    , 348–50, 
    112 S. Ct. 2514
    ,
    2523–25 (1992); Gilbert, 640 F. 3d at 1320. That is not the situation with which
    we are faced in the present case.
    8
    IV.
    For the aforementioned reasons we affirm the district court’s judgment
    denying Hardy’s Rule 60(b) motion to vacate.
    AFFIRMED.
    9