Hernandez Daniels v. Warden, FCC Coleman - USP I ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-10157
Non-Argument Calendar
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D.C. Docket No. 5:12-cv-00596-JDW-PRL
HERNANDEZ DANIELS,
Petitioner-Appellant,
versus
WARDEN, FCC COLEMAN - USP I,
Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(September 18, 2013)
Before TJOFLAT, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
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Hernandez Daniels, a pro se federal prisoner, appeals the district court’s
dismissal of his 28 U.S.C. § 2241 federal habeas corpus petition challenging the
legality of his sentence in light of DePierre v. United States, 131 S.Ct. 2225(2011). Daniels, who previously had filed an unsuccessful 28 U.S.C. § 2255motion to vacate, claimed in his § 2241 petition that his sentence for a crack
cocaine offense was unlawful because DePierre ruled that the term “cocaine base”
in 21 U.S.C. § 841(b)(1)(A)(iii) was not synonymous with crack cocaine. The
district court dismissed his petition after concluding that the claim did not satisfy
the 28 U.S.C. § 2255(e) savings clause because Daniels had not shown that
DePierre applied retroactively or rendered him actually innocent of his offenses.
On appeal, Daniels argues that: (1) he could bring a petition under § 2241 because
he satisfied the three-part test in Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999),
and, therefore, had shown that the savings clause applied to his claim; (2) based on
the Supreme Court’s narrow interpretation of “cocaine base” in DePierre, he stands
convicted of an offense involving a “non-existent substance” because his
indictment misrepresented the nature of his charges by stating that “cocaine base”
was commonly known as crack; and (3) his conviction violates the Due Process
Clause because he is actually innocent, and that he is entitled to an evidentiary
hearing. After thorough review, we affirm.
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The availability of habeas relief under 28 U.S.C. § 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 28 U.S.C. § 2255. Sawyer v. Holder, 326 F.3d
1363, 1365 (11th Cir. 2003). Challenges to the execution of a sentence, rather than
the validity of the sentence itself, are properly brought under § 2241. Antonelli v.
Warden, U.S.P. Atlanta, 542 F.3d 1348, 1352 (11th Cir. 2008).
The “savings clause” of § 2255(e), however, permits a federal prisoner,
under very limited circumstances, to file a habeas petition pursuant to § 2241.
Sawyer, 326 F.3d at 1365. Under the savings clause, a court may entertain a §
2241 petition attacking custody resulting from a federally imposed sentence if the
petitioner establishes that the remedy provided for under § 2255 is “inadequate or
ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). We recently
held that the savings clause is a jurisdictional provision, meaning that a petitioner
must show that § 2255 is “inadequate or ineffective” before the district court has
jurisdiction to review the § 2241 petition. Williams v. Warden, Fed. Bureau of
Prisons, 713 F.3d 1332, 1339-40 (11th Cir. 2013).
When a prisoner has previously filed a § 2255 motion to vacate, he must
apply for and receive permission from us before filing a successive § 2255 motion.
28 U.S.C. §§ 2244(b)(3), 2255(h). Standing alone, the restrictions on successive §
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2255 motions do not render that section “inadequate or ineffective” within the
meaning of the savings clause. Gilbert v. United States, 640 F.3d 1293, 1308 (11th
Cir. 2011) (en banc), cert. denied, 132 S.Ct. 1001 (2012). Consequently, a
petitioner who has filed a previous § 2255 motion and been denied may not
circumvent the Antiterrorism Effective Death Penalty Act’s (“AEDPA”)
successive-motion rule simply by filing a petition under § 2241. Id. While the
scope of the § 2255(e) savings clause has not been fully defined, we’ve noted, in
dicta, that a petitioner meets the requirements of the savings clause when: (1) the
petitioner’s claim is based on a retroactively applicable Supreme Court decision;
(2) the holding of that Supreme Court decision establishes that the petitioner was
convicted of a nonexistent offense; and (3) circuit law squarely foreclosed the
claim at the time it otherwise should have been raised at the petitioner’s trial, on
appeal, or in his first § 2255 motion. Wofford, 177 F.3d at 1244; see also Turner
v. Warden Coleman FCI (Medium), 709 F.3d 1328, 1333-34 (11th Cir. 2013)
(noting that the Wofford test was dicta).
In Williams, we recently interpreted Wofford’s holding as establishing two
necessary, if not sufficient, conditions for a sentencing claim to be viable under §
2255(e)’s savings clause. 713 F.3d at 1343-44. First, the claim must be based on a
retroactively applicable Supreme Court decision. Id. Secondly, the Supreme
Court “must have overturned a circuit precedent that squarely resolved the claim so
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that the petitioner had no genuine opportunity to raise it at trial, on appeal, or in his
first § 2255 motion.” Id. As a result, 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. “Even
if a petitioner succeeds in making Wofford’s three-part showing, he would then
need to demonstrate ‘actual innocence’ of the crime for which he was convicted to
demonstrate an entitlement to relief.” Turner, 709 F.3d at 1334 n.2. Actual
innocence means factual innocence, not legal insufficiency. Bousley v. United
States, 523 U.S. 614, 623 (1998).
Here, the district court did not err in dismissing Daniels’s petition. The
claim that Daniels raises in his § 2241 petition addresses the legality of his
sentence, not the execution of his sentence, and, therefore, it was within the scope
of § 2255, not § 2241. See Sawyer, 326 F.3d at 1365. Because Daniels already
filed a § 2255 motion that was denied, he was not permitted to circumvent the
statutory restriction on successive § 2255 motions by filing a petition under §
2241. See Gilbert, 640 F.3d at 1308. In order to proceed under § 2241, Daniels
needed to show that § 2255 was “inadequate or ineffective” to challenge the
legality of his detention. 28 U.S.C. § 2255(e).
Daniels’s reliance on the Supreme Court’s decision in DePierre to argue that
§ 2255 is “inadequate and ineffective” to challenge the legality of his detention is
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unavailing. Contrary to Daniels’s contentions, DePierre did not narrow the
interpretation of § 841(b)(1)(A)(iii) and hold that “cocaine base” can never be
“crack cocaine,” but instead held that “cocaine base” includes not only “crack
cocaine,” but all cocaine in its chemically basic form. See DePierre, 131 S.Ct. at
2237 (“[T]he term ‘cocaine base’ as used in § 841(b)(1) means not just ‘crack
cocaine,’ but cocaine in its chemically basic form.”). Accordingly, DePierre did
not decriminalize Daniels’s conduct, nor indicate that he was convicted of a non-
existent offense or a “non-existent substance.” See Wofford, 177 F.3d at 1244. In
any event, DePierre did not overturn “a circuit precedent that squarely resolved the
claim so that the petitioner had no genuine opportunity to raise it at trial, on appeal,
or in his first § 2255 motion,” since it merely involved the interpretation of a
substantive criminal statute. See Williams, 713 F.3d at 1343-44; see also DePierre,
131 S.Ct. at 2237.
Finally, although Daniels argues that his conviction violates the Due Process
Clause because he is actually innocent and that he was entitled to an evidentiary
hearing, these arguments are moot because he has not met the threshold
requirement for showing that the § 2255(e) savings clause applies. Since Daniels
fails to show that his claim satisfied the savings clause, he cannot proceed under §
2241. See 28 U.S.C. § 2255(e); Sawyer, 326 F.3d at 1365. In short, the district
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court did not have jurisdiction over Daniels’s § 2241 petition, and did not err in
dismissing the petition. See Williams, 713 F.3d at 1339-40.
AFFIRMED.
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