Juan Manuel Ortiz-Alvear vs U.S. Attorney General, Walt Wells

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13924 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 14, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 3:09-cv-00092-DHB-WLB
JUAN MANUEL ORTIZ-ALVEAR,
llllllllllllllllllllllllllllllllllllllll Petitioner-Appellant,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent,
WALT WELLS,
llllllllllllllllllllllllllllllllllllllll Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(June 14, 2011)
Before HULL, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Pro se petitioner-appellant Juan Manuel Ortiz-Alvear appeals the district
court’s denial of his habeas petition, brought under 28 U.S.C. § 2241. On appeal,
Ortiz-Alvear argues that the Supreme Court narrowed the scope of the federal
money laundering statute, 18 U.S.C. § 1956(a)(2), in Cuellar v. United States, 553
U.S. 550 (2008), which rendered him actually innocent of his money laundering
conviction. He explains that 28 U.S.C. § 2255 was inadequate to challenge his
conviction based on the retroactive application of Cuellar because he had
previously filed a § 2255 motion. After a thorough review of the record, we
affirm.
In 1995, Ortiz-Alvear was convicted in the Eastern District of New York for
conspiracy to commit a drug offense, structuring financial transactions to avoid
currency reporting requirements, and money laundering. His convictions were
affirmed on direct appeal, and in 1998 he filed an unsuccessful motion to vacate
under 28 U.S.C. § 2255.
He was later transferred to a facility in the Southern District of Georgia and
in 2009, Ortiz-Alvear filed the instant § 2241 petition, arguing that he was actually
innocent of the money laundering charges because the Supreme Court’s decision
in Cuellar narrowed the definition of money laundering so that it no longer
covered his conduct. Because he had previously filed a § 2255 motion, he argued
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that he was entitled to relief under § 2241 via the savings clause in § 2255. The
district court, adopting the magistrate judge’s recommendation, denied relief on
the ground that the Supreme Court had not identified Cuellar as retroactively
applicable. This appeal followed.
We review de novo the availability of habeas relief under § 2241. Darby
v. Hawk-Sawyer, 405 F.3d 942, 944 (11th Cir. 2005). Title 28 U.S.C.
§ 2255(e)—the “savings clause”—“permits a prisoner to file a § 2241 petition
only if an otherwise available remedy under § 2255 is inadequate or ineffective to
test the legality of his detention.” Id. at 945 (quotation omitted). Statutory
restrictions on “successive § 2255 motions, standing alone, do not render that
section inadequate or ineffective within the meaning of the savings clause. Thus,
a petitioner who has filed and been denied a previous § 2255 motion may not
circumvent the successive motion restrictions simply by” requesting relief under
§ 2241. Id. (quotation omitted). As this court has explained,
[t]he savings clause of § 2255 [only] applies to a claim when: 1) that
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). In order for a prisoner to
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avail himself of the § 2241 remedy via the savings clause, he must meet all three
criteria articulated in Wofford. See 177 F.3d at 1244.
When the Supreme Court announces a new rule, that rule is generally only
applicable to criminal cases pending on direct review. Schriro v. Summerlin, 542
U.S. 348, 351 (2004). But new substantive rules, including decisions that narrow
the scope of a criminal statute by interpreting its terms, generally apply
retroactively to cases on collateral review. Id. at 351-52; see also United States v.
Peter, 310 F.3d 709, 711 (11th Cir. 2002) (stating that “[d]ecisions of the Supreme
Court construing substantive federal criminal statutes must be given retroactive
effect.”).
Ortiz-Alvear was convicted under the federal money laundering statute, 18
U.S.C. § 1956, which “prohibits specified transfers of money derived from
unlawful activities.” Cuellar v. United States, 553 U.S. 550, 556 (2008). Under
subsection (a)(2), it is unlawful to transfer funds “knowing that the transaction is
designed in whole or in part-- (i) to conceal or disguise the nature, the location, the
source, the ownership, or the control of the proceeds of specified unlawful
activity; or (ii) to avoid a transaction reporting requirement under State or Federal
law.” 18 U.S.C. § 1956(a)(2). In Cuellar, the Supreme Court interpreted the term
“designed” to narrow § 1956’s scope, holding that, in a prosecution for
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concealment money laundering, “how one moves the money is distinct from why
one moves the money.” Id. at 566 (emphasis in original). The Supreme Court
thus held that merely hiding funds during transportation was not a violation of the
statute and that the government must prove that the transportation had the purpose
of concealing the source or ownership of the funds. Id. at 568.
Ortiz-Alvear argues that the Supreme Court’s narrow interpretation renders
him actually innocent of his money laundering conviction.1 Under the third
Wofford criterion, Ortiz-Alvear may only “open a portal” to a § 2241 proceeding if
“circuit law squarely foreclosed such a claim at the time it otherwise should have
been raised.” Darby, 405 F.3d at 945. Because Ortiz-Alvear’s direct appeal and
first § 2255 were governed by the law of the Second Circuit, it is that circuit’s law
that must have “squarely foreclosed” Ortiz-Alvear’s claim at the time it otherwise
should have been raised.
Here, the government concedes, and we agree, that Cuellar is retroactively
applicable to cases on collateral review because it established a new substantive
rule of criminal law. But Ortiz-Alvear is not entitled to relief because he must
1
Ortiz-Alvear’s passing references to the Suspension Clause and to the concurrent
sentence doctrine are insufficient to raise any argument on appeal. See Chavis v. Clayton County
Sch. Dist., 300 F.3d 1288, 1291 n.4 (11th Cir. 2002) (confirming that “a passing reference in an
appellate brief is insufficient to raise an issue”). Therefore, we decline to address them.
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meet all three criteria articulated in Wofford to avail himself of the savings clause,
see Wofford, 177 F.3d at 1244, and Ortiz-Alvear cannot show that Second Circuit
law squarely foreclosed his claim at the time of his direct appeal or first § 2255
motion to vacate.2
Second Circuit precedent did not “squarely foreclose” Ortiz-Alvear’s
claim—that he did not violate § 1956(a)(2)(B)(i) by simply hiding funds during
transportation—until at least 2006, when the court of appeals decided United
States v. Gotti, 459 F.3d 296 (2d Cir. 2006) and United States v. Ness, 466 F.3d 79(2d Cir. 2006), vacated by Ness v. United States, 553 U.S. 1091 (2008). Prior to
1998, the year in which Ortiz-Alvear filed his § 2255 motion to vacate in the
Eastern District of New York, no circuit precedent squarely foreclosed
Ortiz-Alvear’s claim. Thus, Ortiz-Alvear has failed to “open a portal” to a § 2241
proceeding via the savings clause in § 2255 because he has not met the third prong
of the Wofford test.
AFFIRMED.
2
We may “affirm for any reason supported by the record, even if not relied on by the
district court,” Cochran v. U.S. Health Care Fin. Admin., 291 F.3d 775, 778 n.3 (11th Cir. 2002).
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