William Bernard Crews v. Wetzel

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 14, 2005
No. 04-15442
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00101-CV-5-SPM-AK
WILLIAM BERNARD CREWS,
Petitioner-Appellant,
versus
WETZEL,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(July 14, 2005)
Before ANDERSON, CARNES and FAY, Circuit Judges.
PER CURIAM:
William Bernard Crews, a federal prisoner proceeding pro se, appeals the
denial of his petition for writ of habeas corpus, 28 U.S.C. § 2241. He argues that
the district court erred in finding that he had failed to show that 28 U.S.C. § 2255was inadequate or ineffective for testing the legality of his detention. For the
reasons stated more fully below, we affirm.
Crews, serving a 188-month prison term for conspiracy to possess with
intent to distribute controlled substances, 21 U.S.C. § 846, claimed in his petition
that his sentence, imposed after he pled guilty, violated the Ex Post Facto Clause of
the Constitution because his sentence was considered “non-paroleable” under an
amended version of 21 U.S.C. § 846 that had not been operative at the time he
committed his offense. Therefore, he argued the Bureau of Prisons was improperly
computing his sentence by applying the non-parole provisions of a statute that
should not apply to his conviction.
In his petition, Crews admitted that he had (1) never filed a direct appeal of
his sentence or conviction and (2) previously filed two separate motions to vacate,
alter, or amend his federal sentence pursuant to 28 U.S.C. § 2255, each time
arguing that he should have been “sentenced under the old law.” Both of his
§ 2255 motions were denied. Crews’s brief in support of his petition stated that (1)
he was charged with distributing cocaine base between March 12, 1986, and April
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1988; (2) on April 4, 1990, he entered into a plea agreement indicating that he
faced a prison term of 10 years to life; (3) on March 12, 1991, he was sentenced
pursuant to U.S.S.G. § 2D1.1(a)(3) to 188 months’ imprisonment; (4) his two
previous § 2255 motions had been dismissed; (5) he had attempted to seek
administrative relief from the Bureau of Prisons (“BOP”), arguing that his sentence
should be corrected because his sentence was imposed under the “new” penalty
provisions of 21 U.S.C. § 846, as amended by Congress effective November 18,
1988, instead of the “old” version of 21 U.S.C. § 846, in force at the time his
conduct of conviction had ended; and (6) as a result of the BOP’s continued use of
the “new” instead of the “old” law, he was being rendered ineligible for parole or
good time for parole in violation of his rights.
A magistrate issued a report and recommended that Crews’s petition be
dismissed with prejudice. The magistrate found that, on July 1, 1992, Crews had
filed a § 2255 motion to vacate, claiming ineffective assistance of counsel and that
he “should have been sentenced under the old law.” It further found that, based on
Crews’s pleadings, Crews had filed a second motion or petition alleging that he
should have been sentenced under the “old law,” but it was impossible to discern
from the documents the court had whether Crews was referring to a second § 2255
motion or a § 2241 petition that Crews had filed in the Northern District of West
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Virginia, which was denied as a successive § 2255 motion and dismissed without
prejudice.
The report found that the issue presented was whether the “savings clause”
of § 2255, which permits a federal prisoner to seek § 2241 habeas relief when a
motion to vacate is “inadequate or ineffective to test the legality . . . of detention,”
afforded Crews any relief. It found that the clause did not, as Crews’s claim failed
to satisfy any of the criteria for permitting a § 2241 petition under the “savings
clause” of § 2255. The report concluded that Crews’s claims were the same claims
that previously had been presented and were all sentencing claims that either
should have been presented at sentencing or direct appeal or were constitutional
challenges that should have been raised in Crews’s § 2255 motion. Thus, the
magistrate found that Crews’s petition merely sought to circumvent the restrictions
imposed on successive § 2255 motions, and the savings clause did not exist for
such a purpose. Therefore, the magistrate recommended that Crews’s petition be
dismissed with prejudice.
Crews objected to the report, arguing that he was not trying to circumvent
the requirements for filing a second § 2255 motion, but that instead he was
challenging the BOP’s computation/execution of his sentence, a permissible basis
for a § 2241 petition, citing Martorana v. United States, 873 F.2d 283, 285 (11th
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Cir. 1989). The district court, after conducting a de novo review of the
magistrate’s report and Crews’s objections, adopted the report and
recommendation, denied Crews’s petition for habeas relief, and dismissed the case
with prejudice.
On appeal, Crews argues that it was improper for the district court to apply
AEDPA to his claim because his initial 2255 motion was filed in 1992, before
AEDPA’s passage. Thus, he argues that because he was unable to file a second or
successive 2255 motion claiming actual innocence of the sentence he is presently
serving, any § 2255 relief is inadequate and ineffective to test the legality of his
detention, and he should be permitted to file a § 2241 petition. He further contends
that sentencing for conspiracies prior to the November 18, 1988, amendment was
governed by United States v. Rush, 874 F.2d 1513 (11th Cir. 1989), and that any
procedural default for failing to raise his claims on direct appeal or in a § 2255
motion is overcome because he is actually innocent of the sentence he agreed to in
his plea agreement. Crews also argues that the sentencing provisions to which he
pled in his agreement represented a version of 21 U.S.C. § 846 to which he could
not have pled guilty because those sentencing provisions did not exist at the time
he committed his offense. Lastly, Crews argues in his reply brief that the
government’s attempt to construe his § 2241 petition as a second or successive
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§ 2255 motion should be dismissed because it would be an unfair retroactive
application of AEDPA, citing In re Jones, 226 F.3d 328 (4th Cir. 2000). (Id.). He
then restates his original arguments. (Id. at 2-4).
We review de novo a district court’s denial of habeas relief under § 2241.
Skinner v. Wiley, 355 F.3d 1293, 1294 (2004). While 28 U.S.C. § 2255 is the
primary method of collateral attack for federal prisoners, it is possible for a federal
prisoner to attack his conviction and sentence through § 2241 as opposed to
§ 2255. Pursuant to the “savings clause” of 28 U.S.C. § 2255:
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 ¶ 5 (emphasis supplied). Thus, a § 2241 petition attacking
custody resulting from a federally imposed sentence may only be entertained if the
petitioner establishes that the remedy provided for under § 2255 is inadequate or
ineffective. See McGhee v. Hanberry, 609 F.2d 9, 10-11 (5th Cir. 1979) (holding
that a prior unsuccessful § 2255 motion is insufficient on its own to establish the
ineffectiveness of § 2255 remedies). The burden of showing the inadequacy or
ineffectiveness of the § 2255 remedy rests with the petitioner. Id. at 10.
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We have held that to determine whether a § 2255 motion is inadequate or
ineffective to test the legality of prisoner’s detention under the “savings clause,” a
prisoner must show:
(1) that [his] claim is based upon a retroactively applicable Supreme
Court decision; (2) the holding of that Supreme Court decision
establishes the petitioner was convicted for a nonexistent offense; and,
(3) circuit law squarely foreclosed such a claim at the time it
otherwise should have been raised in the petitioner's trial, appeal, or
first § 2255 motion.
Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999).
Like in Wofford, Crews “had a procedural opportunity to raise . . . his claims
and have [them] decided either at trial or on appeal.” Id. at 1245. Therefore, under
Wofford, Crews “is attempting to use § 2241 simply to escape the restrictions on
second or successive § 2255 motions.” Id. Crews has failed to point to any
Supreme Court or Circuit decision, retroactive or otherwise, indicating that he was
convicted for a non-existent crime and, therefore, actually innocent. See Sawyer v.
Holder, 326 F.3d 1363, 1366 (11th Cir. 2003) (applying the test from Wofford and
concluding that a petitioner, under the “non-existent offense” prong must
demonstrate that he is actually innocent).
However, Crews urges us to follow In re Jones, 226 F.3d 328 (4th Cir. 2000)
and White v. Fiore, 523 U.S. 23, 120 S.Ct. 469, 145 L.Ed.2d 353 (1999). Neither
is apposite to this case. The Fourth Circuit in Jones first addressed whether the
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application of AEDPA’s gatekeeping provisions for filing second or successive
applications was impermissibly retroactive where a prisoner had filed his first
§ 2255 motion prior to the enactment of AEDPA. Jones, 226 F.3d at 331. The
Fourth Circuit held it was not because the petitioner there failed to demonstrate any
reliance on the continued existence of pre-AEDPA law or that he might have acted
differently had he known that any subsequent § 2255 motion would be subject to
the new gatekeeping provisions. Id. at 332. The same is true in the instant case,
and the application of AEDPA’s gatekeeping provisions are not impermissibly
retroactive to Crews’s claims.
However, applying a slightly different test than the one in Wofford, the
petitioner was allowed to proceed under § 2241 because the court held that § 2255
was ineffective and inadequate to test the legality of his conviction. Id. at 333-34.
The facts of Jones, however, are distinguishable in several material aspects. There,
the petitioner was convicted under 18 U.S.C. § 924(c)(1) (using and carrying a
firearm during and in a drug offense), filed a direct appeal, and filed a § 2255
motion prior to the passage of AEDPA. Id. at 329-30. Subsequently, the Supreme
Court overruled Fourth Circuit precedent defining what the government was
required to prove under the “use” prong of § 924(c)(1), but the petitioner, because
of the recently enacted AEDPA, would not be able to satisfy the gatekeeping
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provisions of § 2255 because the new rule was not one of constitutional law.1 See
generally Jones, 226 F.3d at 330-34. Thus, because the petitioner was
“incarcerated for conduct that is not criminal” in light of the Supreme Court’s
holding, § 2255 was inadequate for testing the legality of the petitioner’s
conviction. Id. at 334.
Unlike in Jones, Crews never filed a direct appeal, but more importantly, and
fatal to his case, has pointed to no Supreme Court holding overruling and altering
the conduct criminalized in his statute of conviction and, therefore, altering what
the government must prove to secure a conviction under that statute, 21 U.S.C.
§ 846. The legality of his conviction, therefore, is not in question and Crews
cannot show, under Jones, that § 2255 is ineffective or inadequate to test the
legality of his conviction.
In Fiore, a state prisoner filed a habeas petition arguing that a Pennsylvania
Supreme Court decision clarified the law in existence at the time of his conviction
and, under the clarified law, the state had failed to prove a necessary element of the
crime for which he was convicted. Fiore, 528 U.S. at 24-25, 120 S.Ct at 470-71.
The United States Supreme Court did not decide the case, but certified a question
1
The Supreme Court decision at issue was Bailey v. United States, 516 U.S. 137, 144,
116 S.Ct. 501, 506, 133 L.Ed.2d 472 (1995), which held that § 924(c)(1)’s “use” prong requires
the government to show active employment of the firearm, not mere possession.
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to the Pennsylvania Supreme Court to determine whether that Court’s opinion at
issue articulated a new rule of law or merely clarified the existing law at the time
of the petitioner’s conviction. Id. at 29, 120 S.Ct. at 473. The Pennsylvania
Supreme Court responded, indicating that its opinion had merely clarified existing
law and, therefore, the United States Supreme Court held that the petitioner’s
conviction was invalid because a necessary element of the crime had not been
proven. Fiore v. White, 531 U.S. 225, 228-29, 121 S.Ct. 712, 714, 148 L.Ed.2d
629 (2001).
Here, Crews has failed to prove that any element of his crime of conviction
was not proven by the government, nor has he demonstrated that any Court has
clarified the existing law regarding the necessary elements for proving drug
conspiracy charges under 21 U.S.C. § 846 in such a way as to render his conviction
invalid under federal law. Therefore, Fiore is inapposite.
Finally, Crews argues that his failure to raise a direct appeal to his guilty
plea, conviction, and sentence should be excused because he was “actually
innocent” and, therefore, he should be permitted to pursue habeas relief under
Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998).
In Bousley, the Supreme Court held that, despite the fact that the petitioner had
procedurally defaulted on his claim that his guilty plea was not knowing and
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voluntary in light of the Supreme Court’s pronouncement in Bailey (see note 1
supra), he could pursue habeas relief only if he proved that “the constitutional error
in his plea colloquy has probably resulted in the conviction of one who is actually
innocent.” Bousley, 523 U.S. at 623, 118 S.Ct. at 1611. Thus, the petitioner
needed to demonstrate “no more than that he did not ‘use’ a firearm as that term is
defined in Bailey.” Id. at 624, 118 S.Ct. at 1612.
Like Jones and Fiore, Bousley is inapposite. First, the question in Bousley
was limited to whether courts should permit post-Bailey collateral attacks, a
challenge Crews is not making. Id. at 618, 118 S.Ct. at 1608-09. Second,
assuming arguendo that Bousley had some applicability here, Crews’s
misconception is that an essential element of the crime for which he was convicted
has been in some way altered by a subsequent court decision, as in all three cases
he mentions. Unlike in Bousley, Crews has not pointed to an element of the crime
of conspiracy under 21 U.S.C. § 846 that has been so altered that the government
failed to properly prove the charge, making Crews actually and factually innocent
of the crime with which he was charged. Lastly, because the amendment Crews
alleges affected his sentence was already operative at the time of his sentencing, he
cannot show cause for why no argument was ever made to the district court or an
appellate court on that issue. See Bousley, 523 U.S. at 622, 118 S.Ct. at 1611.
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Therefore, we conclude that Crews’s habeas petition was correctly dismissed
by the district court for being an impermissible attempt to circumvent the
requirement for filing a second or successive motion pursuant to § 2255.
AFFIRMED.
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