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Cleveland Hankerson v. Warden ( 2015 )


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  •            Case: 14-12896   Date Filed: 02/02/2015   Page: 1 of 9
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 14-12896
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 1:13-cv-01790-WSD
    CLEVELAND HANKERSON,
    Petitioner-Appellant,
    versus
    WARDEN,
    UNITED STATES PENITENTIARY,
    Atlanta, Georgia,
    Respondent-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    ________________________
    (February 2, 2015)
    Before JORDAN, JILL PRYOR, and ANDERSON, Circuit Judges.
    PER CURIAM:
    Case: 14-12896     Date Filed: 02/02/2015   Page: 2 of 9
    Cleveland Hankerson, a federal prisoner proceeding pro se, appeals the
    district court’s dismissal of his 
    28 U.S.C. § 2241
     habeas corpus petition as
    successive under 
    28 U.S.C. § 2244
    (a). In his instant petition, Hankerson again
    relied on Begay v. United States, 
    553 U.S. 137
    , 
    128 S.Ct. 1581
    , 
    170 L.Ed.2d 490
    (2008), to argue that he should not have had his sentence enhanced as a career
    offender under U.S.S.G. § 4B1.1 because his prior conviction for aggravated
    battery did not constitute a violent felony. As background, in dismissing an earlier
    § 2241 habeas petition, the district court had adjudicated on the merits Hankerson’s
    claim that, under Begay, his prior conviction for driving under the influence
    (“DUI”) did not constitute a violent felony for purposes of the career-offender
    enhancement under § 4B1.1. In its order dismissing that earlier petition, the
    district court had reasoned that (1) the petition was untimely because Hankerson
    had filed it more than a year after the Supreme Court had decided Begay; (2) he
    could not satisfy the requirement of Wofford v. Scott, 
    177 F.3d 1236
     (11th Cir.
    1999), of demonstrating that he was convicted of a nonexistent offense; (3) he had
    not received a sentence in excess of the statutory maximum, such that, under
    Gilbert v. United States, 
    640 F.3d 1293
     (11th Cir. 2011) (en banc), the “savings
    clause” of 
    28 U.S.C. § 2255
    (e) did not apply to his sentencing claim; and (4) his
    claim of “actual innocence” of the career-offender enhancement failed because he
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    did not allege that he was factually innocent of his offenses of conviction, and the
    actual-innocence exception did not apply to claims of guidelines error.
    On appeal, Hankerson argues the merits of his claim that he is “actually
    innocent” of his career-offender enhancement because his prior conviction for
    aggravated battery did not constitute a violent felony. Nevertheless, he provides
    no argument in response to the district court’s dismissal of his § 2241 petition as
    successive under § 2244(a).
    Upon a thorough review of the record, and after consideration of
    Hankerson’s brief, we affirm.
    We review de novo the availability of habeas relief under 
    28 U.S.C. § 2241
    .
    Turner v. Warden Coleman FCI (Medium), 
    709 F.3d 1328
    , 1333 (11th Cir. 2013).
    Pro se pleadings are liberally construed. Tannenbaum v. United States, 
    148 F.3d 1262
    , 1263 (11th Cir. 1998).
    Under § 2241, a district court has the power to grant a writ of habeas corpus
    to a prisoner in custody in that district. 
    28 U.S.C. § 2241
    (a), (d). Under § 2244(a),
    No circuit or district judge shall be required to entertain an application
    for a writ of habeas corpus to inquire into the detention of a person
    pursuant to a judgment of a court of the United States if it appears that
    the legality of such detention has been determined by a judge or court
    of the United States on a prior application for a writ of habeas corpus,
    except as provided in section 2255.
    
    28 U.S.C. § 2244
    (a). In Antonelli v. Warden, we held that a district court erred in
    dismissing a petitioner’s second § 2241 petition for the petitioner’s failure to
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    obtain our permission to file a second or successive petition for habeas corpus
    relief, as § 2241 petitions are not subject to our “gatekeeping” function as § 2255
    motions are. 
    542 F.3d 1348
    , 1350, 1352 (11th Cir. 2008). Nevertheless, we
    affirmed the district court’s alternative dismissal of the petition under § 2244(a)
    upon its finding that the claims in the second petition were “successive.” Id.
    at 1352. We concluded that, because the claims raised in the second § 2241
    petition previously had been adjudicated on the merits in the first § 2241 petition,
    the second § 2241 petition was successive, and the district court properly dismissed
    it under § 2244(a). Id.
    Under the Sentencing Guidelines,
    A defendant is a career offender if (1) the defendant was at least
    eighteen years old at the time the defendant committed the instant
    offense of conviction; (2) the instant offense of conviction is a felony
    that is either a crime of violence or a controlled substance offense; and
    (3) the defendant has at least two prior felony convictions of either a
    crime of violence or a controlled substance offense.
    U.S.S.G. § 4B1.1(a).
    The term “crime of violence” means any offense under federal or state
    law, punishable by imprisonment for a term exceeding one year,
    that—
    (1)    has as an element the use, attempted use, or threatened
    use of physical force against the person of another, or
    (2)    is burglary of a dwelling, arson, or extortion, involves
    use of explosives, or otherwise involves conduct that
    presents a serious potential risk of physical injury to
    another.
    4
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    U.S.S.G. § 4B1.2(a). We have explained that this definition of a “crime of
    violence” is “substantially the same” as the definition of a “violent felony” in the
    Armed Career Criminal Act (“ACCA”), 
    18 U.S.C. § 924
    (e)(2)(B). United States v.
    Chitwood, 
    676 F.3d 971
    , 975 n.2 (11th Cir. 2012).
    In Begay, the Supreme Court considered whether a New Mexico DUI
    conviction constituted a “violent felony” under the ACCA. 
    553 U.S. at 139-40
    ,
    
    128 S.Ct. at 1583-84
    . The Supreme Court interpreted the enumerated list of
    burglary, arson, extortion, and the use of explosives as having a limiting effect on
    the residual clause, “or otherwise involves conduct that presents a serious potential
    risk of physical injury to another.” 
    Id. at 141-43
    , 
    128 S.Ct. at 1584-85
    . The Court
    then concluded that the residual clause did not cover all crimes that involved a
    “serious potential risk of physical injury to another,” but only those crimes that
    were “roughly similar, in kind as well as in degree of risk posed” to the
    enumerated list of crimes. 
    Id. at 142
    , 
    128 S.Ct. at 1584-85
     (citation omitted). The
    Court also noted that all of the ACCA’s enumerated crimes “typically involve
    purposeful, violent, and aggressive conduct.” 
    Id. at 144-45
    , 
    128 S.Ct. at 1586
    (quotation marks omitted). By contrast, New Mexico’s DUI statute did not involve
    such conduct, and, thus, did not qualify as a “violent felony” under
    § 924(e)(2)(B)(ii). Id. at 145-48, 
    128 S.Ct. at 1586-88
    .
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    A one-year statute of limitations applies to the filing of habeas corpus
    petitions and motions to vacate. 
    28 U.S.C. §§ 2244
    (d)(1), 2255(f). The limitation
    period runs from the date on which (1) the judgment of conviction became final;
    (2) an unconstitutional impediment to filing was removed; (3) a new retroactively
    applicable right was initially recognized by the Supreme Court; or (4) facts
    supporting new claims could have been discovered through the exercise of due
    diligence, whichever date is latest. 
    28 U.S.C. §§ 2244
    (d)(1), 2255(f). The
    one-year statute of limitations applies to § 2241 habeas petitions. See Peoples v.
    Chatman, 
    393 F.3d 1352
    , 1353 (11th Cir. 2004) (holding that a state prisoner’s
    § 2241 habeas petition was subject to the one-year statute of limitations in
    § 2244(d)(1)); Medberry v. Crosby, 
    351 F.3d 1049
    , 1058-62 (11th Cir. 2003)
    (holding that there was a single habeas corpus remedy for state prisoners governed
    by both § 2241 and 
    28 U.S.C. § 2254
    , and that, thus, the habeas corpus remedy
    authorized by § 2241 was subject to the restrictions of § 2254).
    The district court’s power to grant a writ of habeas corpus under § 2241 is
    limited by the “savings clause” of § 2255(e), which states,
    An application for a writ of habeas corpus in behalf of a prisoner who
    is authorized to apply for relief by [a § 2255 motion], 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.
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    28 U.S.C. § 2255
    (e). When a prisoner previously has filed a § 2255 motion to
    vacate, he must apply for and receive permission from the court of appeals before
    filing a successive § 2255 motion. 
    28 U.S.C. §§ 2244
    (b), 2255(h). Such
    restrictions on successive § 2255 motions, standing alone, do not render that
    section “inadequate or ineffective” within the meaning of the savings clause.
    Gilbert, 640 F.3d at 1307-08. In Wofford, we stated 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 such a claim at the time it
    otherwise should have been raised at the petitioner’s trial, appeal, or first § 2255
    motion. 
    177 F.3d at 1244
    .
    In Gilbert, we held that the savings clause of § 2255(e) “does not authorize a
    federal prisoner to bring in a § 2241 petition a claim, which would otherwise be
    barred by § 2255(h), that the sentencing guidelines were misapplied in a way that
    resulted in a longer sentence not exceeding the statutory maximum.” 640 F.3d
    at 1323. We initially noted that the text of the savings clause does not indicate that
    it authorizes the filing of a § 2241 petition to remedy a guidelines miscalculation
    that can no longer be raised in a § 2255 motion. Id. at 1307. Furthermore, the bar
    on filing a successive § 2255 motion could not render that section “inadequate or
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    ineffective” to test the legality of a prisoner’s detention, or otherwise “the savings
    clause would eviscerate” the statutory bar on successive motions to vacate. Id.
    at 1308. We emphasized that one of the principle purposes of the Antiterrorism
    and Effective Death Penalty Act of 1996 (“AEDPA”) was to ensure a greater
    degree of finality for convictions, and that permitting prisoners to use the savings
    clause to assert guidelines-based attacks after the denial of a first § 2255 motion
    would wreak havoc on the finality interests that Congress sought to protect by
    imposing a statutory bar on successive motions. Id. at 1310-11. We also rejected
    Gilbert’s argument that he was “actually innocent” of being a career offender
    because “[a] defendant who is convicted and then has the § 4B1.1 career offender
    enhancement, or any other guidelines enhancement, applied in the calculation of
    his sentence has not been convicted of being guilty of the enhancement. If
    guidelines enhancements were crimes, they would have to be charged in the
    indictment and proven to the jury beyond a reasonable doubt.” Id. at 1320. See
    also Spencer v. United States, __ F.3d __, 
    2014 WL 6234529
     (11th Cir. Nov. 14,
    2014) (en banc) (holding that a Begay claim is not cognizable in a § 2255 motion
    unless the sentence exceeds the statutory maximum).
    The district court did not err in dismissing Hankerson’s instant § 2241
    petition as successive under § 2244(a). The district court adjudicated the merits of
    his Begay argument in his first § 2241 petition. While he now relies on Begay to
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    challenge a separate prior conviction for aggravated battery instead of the prior
    DUI conviction he sought to challenge in his initial § 2241 petition, the district
    court’s reasoning for rejecting his reliance on Begay—timeliness and failure to
    satisfy the requirements of Wofford and Gilbert—was not limited to his challenge
    to his DUI conviction and would apply equally to his current challenge to his
    aggravated-battery conviction. Thus, because the district court previously
    adjudicated his Begay claim on the merits in his first § 2241 petition, his second
    § 2241 petition again raising Begay as the basis for challenging his career-offender
    sentence was successive, and the district court properly dismissed it under
    § 2244(a).
    AFFIRMED.
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