Quentin Rudolph Dixon v. United States

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 31, 2006
No. 06-11402 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00028-CV-ORL-28-KRS
QUENTIN RUDOLPH DIXON,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 31, 2006)
Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Quintin Rudolph Dixon, a federal prisoner proceeding pro se, appeals the
district court’s denial of his petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241, for failure to demonstrate entitlement to proceed under the savings
clause of 28 U.S.C. § 2255. For the reasons that follow, we affirm the district
court.
I. BACKGROUND
In September 2001, Dixon and four others were indicted by a federal grand
jury for manufacturing, possessing, and conspiring to possess counterfeit federal
notes, in violation of 18 U.S.C. §§ 371, 471, and 472. Dixon, without the benefit
of a plea agreement, pleaded guilty to all counts against him, and was sentenced to
88 months in prison. Dixon’s four co-defendants, by contrast, entered into plea
agreements, under which the conspiracy count was dismissed, and were sentenced
to 24 months of probation. Dixon, who did not appeal his convictions, filed a
motion to vacate his sentence pursuant to 28 U.S.C. § 2255. After the district court
denied his initial § 2255 motion, Dixon requested, and was denied, permission to
file a second and successive § 2255 motion. Dixon then filed a § 2241 petition for
a writ of habeas corpus, claiming ineffective assistance of counsel and erroneous
calculation of his sentence. Dixon also claimed that because the Government had
dismissed the conspiracy charges against his co-defendants, he was “actually
innocent” of conspiracy. The district court denied his § 2241 petition, holding that
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Dixon had failed to satisfy the criteria of § 2255’s savings clause, and thus, as a
federal prisoner, could not proceed under § 2241. On appeal, Dixon argues that:
he properly filed his petition pursuant to § 2241, the district court should have
addressed the merits of his petition, he is actually innocent of conspiracy, and there
was a fundamental defect in his sentencing.
II. DISCUSSION
The availability of habeas relief under § 2241 presents a question of law that
we review de novo. Darby v. Hawk-Sawyer, 405 F.3d 942, 944 (11th Cir. 2005).
Typically, collateral attacks on the validity of a federal conviction or sentence must
be brought under § 2255. Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir. 2003).
On rare occasions, however, it is possible for federal prisoners to attack their
convictions and sentences pursuant to § 2241 as opposed to § 2255. Id.; 28 U.S.C.
§§ 2241(a), 2255. Under what is termed the “savings clause” of § 2255,
[a]n 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
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his detention.
28 U.S.C. § 2255. Thus, a § 2241 petition attacking custody resulting from a
federally-imposed sentence may be entertained only if the petitioner establishes
that the § 2255 remedy is inadequate or ineffective. See id. The burden of coming
forward with evidence affirmatively showing the inadequacy or ineffectiveness of
the § 2255 remedy rests with the movant. McGhee v. Hanberry, 604 F.2d 9, 10
(5th Cir. 1979).
When a prisoner has previously filed a § 2255 motion to vacate, he must
apply for and receive our authorization before filing a successive § 2255 motion.
28 U.S.C. §§ 2244(b)(3), 2255; In re Blackshire, 98 F.3d 1293, 1293 (11th Cir.
1996). We have made clear that the restrictions on successive § 2255 motions,
“standing alone, do not render that section ‘inadequate or ineffective’ within the
meaning of the savings clause.” Darby, 405 F.3d at 945. Therefore, a petitioner
who has filed a previous § 2255 motion, which has been denied, may not
circumvent the successive-motion rule simply by filing a petition under § 2241. Id.
(citing Wofford v. Scott, 177 F.3d 1236, 1245 (11th Cir. 1999)).
We have articulated a three-prong test to determine whether § 2255 is
inadequate or ineffective to test the legality of a prisoner’s detention under
§ 2255’s savings clause. According to that test, the savings clause applies when:
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(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, 177 F.3d at 1244. In order for a prisoner to avail himself of the § 2241
remedy under Wofford, all three criteria must be satisfied. See id. If the savings
clause of § 2255 applies “to open the portal to a § 2241 proceeding, the proper
inquiry in that § 2241 proceeding will be whether the petitioner can establish actual
innocence of the crime for which he has been convicted, as ‘actual innocence’ is
defined in Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d
828 (1998).” Id. at 1244 n.3.
In the instant case, Dixon is precluded from seeking relief under § 2241
because the § 2255 savings clause does not apply. First, Dixon previously filed a
§ 2255 motion to vacate, and his motion was denied. Thus, it appears that Dixon
filed his § 2241 petition in an effort to circumvent the rules limiting the scope of
successive § 2255 motions. Second, Dixon cannot meet the initial prong of the
Wofford criteria because he has not shown that his claims are based on any
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retroactively applicable Supreme Court decision. Because he has not satisfied all
three Wofford criteria, Dixon’s petition does not fit within the savings clause of
§ 2255. Accordingly, Dixon has failed “to open the portal to a § 2241
proceeding,” and he cannot argue the merits of his claims of actual innocence,
improper sentencing, and ineffective assistance of counsel.
III. CONCLUSION
For the reasons above, we AFFIRM the district court.
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