[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
_____________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-12513 JUNE 21, 2010
_____________ JOHN LEY
CLERK
D.C. Docket Nos. 99-02054-CT-30-TGW
95-00311-CR-T-3
EZELL GILBERT,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Middle District of Florida
____________
(June 21, 2010)
Before DUBINA, Chief Judge, MARTIN and HILL, Circuit Judges.
HILL, Circuit Judge:
Ezell Gilbert was sentenced for a crack cocaine offense in 1997. His
sentence was enhanced based upon a finding by the district court that he was a
career offender under the Sentencing Guidelines. He filed the instant motion to
vacate his sentence which the district court denied. For the following reasons, we
reverse, vacate Gilbert’s sentence and remand for re-sentencing and other
appropriate action.
I.
Ezell Gilbert was indicted for possession with intent to distribute both crack
cocaine and marijuana in 1995. He plead guilty to both counts. His base offense
level of 32 was calculated pursuant to U.S.S.G. § 2D1.1, for which the range of
imprisonment at the time of sentencing was 151-188 months. At the government’s
request, however, he was classified as a career offender under U.S.S.G. § 4B1.1,
based on two prior convictions – one for possessing with intent to sell crack
cocaine and a second for carrying a concealed firearm. As a career offender,
Gilbert’s sentencing range was increased to 292-365 months.1 At his sentencing
1
As a career offender, Gilbert was assigned an offense level of 37, and his criminal
history was enhanced to category VI. He received a two-level reduction for acceptance of
responsibility, resulting in a total adjusted offense level of 35. Under the then-mandatory
Sentencing Guidelines, his range of imprisonment was 292 to 365 months.
2
hearing, Gilbert objected to the application of the career offender guideline,
specifically arguing that his prior conviction for carrying a concealed weapon was
not a “crime of violence” as defined in § 4B1.2. The district court ordered
briefing on the issue. At the subsequent re-convening of the hearing, the district
court announced it believed that even the minimum 292-month career offender
sentence was “too high,” but that it was without discretion under the then-
mandatory Sentencing Guidelines to impose a lesser sentence. The court said:
The fact that I think the sentence is too high is immaterial. . . . I
don’t see any authority under the law for me to downwardly depart.
So, counsel, I have given you reversible error if you can convince the
Eleventh Circuit that I’m wrong.
* * *
If I’m wrong, they will correct it. Because if I could do it legally, I
would. I don’t think I can. The U.S. Attorney tells me I can’t
Probation tells me I can’t, so I don’t think I can even though I would
if I could. So, there’s grounds for appeal to reverse me, if you can
find it.
Gilbert was sentenced to 292 months’ imprisonment.2
Gilbert appealed his sentence. On appeal, he argued that he was
inappropriately categorized as a career offender because carrying a concealed
firearm was not an offense that would qualify as a crime of violence under the
2
He was also sentenced to 120 months’ imprisonment for the marijuana offense, to run
concurrently with the crack cocaine sentence.
3
career offender provisions of the guidelines. In affirming his sentence, we held, as
a matter of first impression, that “carrying a concealed weapon in violation of
Florida law is a ‘crime of violence’ under U.S.S.G. §4B1.2.” United States v.
Gilbert, 138 F.3d 1371, 1372 (11th Cir. 1998). Gilbert filed a petition seeking a
rehearing of this determination and for rehearing en banc, but we denied relief.
United States v. Gilbert, 156 F.3d 188 (11th Cir. 1998) (table). Gilbert filed a
petition for writ of certiorari to the United States Supreme Court, seeking review
of his enhancement as a career offender, but this too was denied. United States v.
Gilbert, 526 U.S. 1111 (1999).
In 1999, Gilbert filed a pro se motion to vacate, set aside, or correct his
sentence, pursuant to 28 U.S.C. § 2255. The district court denied the motion and
both the district court and we denied him a certificate of appealability. Gilbert
continued serving his sentence, all paths to relief now exhausted by him.
In 2008, the Supreme Court decided the question of what sort of prior
convictions permit enhancement under the Armed Career Criminal Act (the
“ACCA”) of federal felon-in-possession sentences. See 18 U.S.C. § 924(e)(B)(ii).
The ACCA, like § 4B1.2 of the Sentencing Guidelines, permits enhancement of
the underlying sentence where the defendant has prior convictions for a “violent
4
felony.”3 In Begay v. United States, 128 S. Ct. 1581 (2008), the Court held that
the term “violent felony” applies only to crimes that are “roughly similar, in kind
as well as in degree of risk posed, to the examples [in the ACCA] themselves.” Id.
at 1585. The Court explained that the crimes listed in the ACCA all required
“purposeful, ‘violent,’ and ‘aggressive’ conduct.” Id. at 1586. The Court rejected
a broader interpretation of “violent felony” as inconsistent with Congress’ intent in
the ACCA to identify those individuals who, having previously committed
purposeful, violent, and aggressive crimes, are more likely to “deliberately point
the gun and pull the trigger” in the future. Id. at 1587-88.
That same year, in United States v. Archer, 531 F.3d 1347 (11th Cir. 2008),
we applied the Begay analysis to reverse our prior holding, in Gilbert’s own case,
that carrying a concealed firearm is a crime of violence under the career offender
sentencing guideline, § 4B1.2. We said that carrying a concealed firearm “does
not involve the aggressive, violent conduct that the Supreme Court noted is
inherent in the enumerated crimes.” Id. at 1351. Accordingly, we abrogated
Gilbert under the authority of Begay, and held that “the crime of carrying a
concealed firearm may no longer be considered a crime of violence under the
3
We have held that the definition of a “crime of violence” under the Sentencing
Guidelines and a “violent felony” under the ACCA are “virtually identical.” United States v.
Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). We shall use the terms interchangeably.
5
Sentencing Guidelines.” Id. at 1352.
Later that same year, the United States Sentencing Commission published
Amendment 706, which provides a two-level reduction in base offense levels for
crack cocaine offenses. The Commission made Amendment 706 retroactive.
In response to these developments in the law, the district court in this case
sua sponte ordered the parties to file responses regarding Gilbert’s eligibility for a
sentence reduction. The government responded that Gilbert was not eligible for an
Amendment 706 reduction because he was sentenced pursuant to the career
offender guideline, not the crack cocaine guideline to which the amendment
applies. The government further argued that Gilbert was not entitled to any relief
from his career offender status – under Begay and Archer – because any such
motion would be a successive one under 28 U.S.C. § 2255, and, therefore,
disallowed in the absence of a new constitutional rule. See § 2255(h).4 Since
Begay announced only a new rule of statutory construction, the district court
reluctantly agreed, stating:
Unfortunately, Mr. Gilbert is in the unenviable position of having to
remain in prison even though under the present interpretation of the
law he is no longer deemed a career offender and has served the time
4
Section 2255(h) permits a second or successive motion only when there is (1) newly
discovered evidence that would have led to a not-guilty verdict or (2) a new rule of constitutional
law made retroactive by the Supreme Court that was previously unavailable.
6
that would be required of him were he sentenced today. Salt to the
wound is that he legally challenged the very issue that now
incarcerates him – but lost. It is faint justice to tell him now that he
was right but there is no legal remedy. Having exhausted all avenues
known to the court, the Court determines that at this time it is unable
to provide relief to Mr. Gilbert under the law as it currently exists.
In 2009, Gilbert filed a “Motion to Reopen and Amend First 28 U.S.C. §
2255 Motion.” To avoid the successive motion bar, he requested permission to
reopen his first § 2255 motion to include a challenge to the career offender
enhancement. The government opposed the motion, arguing no relief was
available. Gilbert replied that the district court could treat the motion as one for
relief under § 2241, pursuant to the savings clause of § 2255, under the authority
of Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999) and the doctrine of “actual
innocence.” The district court denied Gilbert’s motion, holding that his claim did
not meet the Wofford requirement of a conviction for a nonexistent offense. The
district court granted Gilbert a certificate of appealability on this issue.5
At the time of this writing, Gilbert has served 171 months in prison.
Without the career offender enhancement, Gilbert’s then-mandatory Sentencing
Guidelines range of imprisonment at the time of sentencing would have been 151-
5
The district court also certified whether Gilbert’s Rule 60(b) motion was a successive
Section 2255 motion. For the purposes of resolving the applicability of the savings clause, we
have assumed that this is so.
7
188 months. Furthermore, had he not been sentenced as a career offender, under
Amendment 706 to the Sentencing Guidelines, he might now be entitled to a two-
level reduction in his offense level, resulting in a Guideline range of imprisonment
of just 130-162 months, making him eligible for immediate release.6
The government’s position, however, is that, despite the error in his
sentence, Gilbert is without a legal remedy, his sentence must stand, and he must
remain incarcerated. Although made in good faith and based upon its
understanding of the law, the government’s statement at oral argument that Gilbert
is entitled to no relief from an illegal sentence cannot be the law. The common
law tradition of the “Great Writ” cannot be so moribund, so shackled by the chains
of procedural bars and rigid gatekeeping that this court is not authorized to grant
relief to one who is “in custody in violation of the Constitution or laws or treaties
of the United States.” See 28 U.S. C. § 2241. Fiat Justitia, Ruat Coelum.7
II.
Section 2255 permits a federal prisoner to collaterally attack his conviction
6
The Sentencing Commission made Amendment 706 retroactively applicable, effective
March 3, 2009.
7
“Let right be done, though the heavens should fall.” Branch. Princ. 161.
8
or sentence.8 It substitutes attack by motion for the common law petition for writ
of habeas corpus, which was accorded federal prisoners in the initial Judiciary Act
of 1789, and is now codified at 28 U.S.C. § 2241. In 1996, the Antiterrorism and
Effective Death Penalty Act (the “AEDPA”), amended § 2255 to prevent the filing
of a second or successive motion challenging a federal conviction or sentence.
The purpose of the statute was to achieve finality in convictions by barring
successive and abusive collateral attacks. In this endeavor, the statute has been
quite successful.
We have recognized, however, that, under certain circumstances, the
withdrawal of all judicial review from a successive motion under § 2255 may raise
serious constitutional issues. Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir.
1999). We noted that where a petitioner has a claim that goes to the fundamental
legality of his conviction and sentence, and for which he has had no prior
opportunity to obtain a reliable judicial determination, serious constitutional issues
might arise if the successive motion bar in § 2255 foreclosed all relief. Id. We
read the “savings clause” of § 2255 – permitting traditional habeas relief by
8
Section 2255 was enacted in 1948, to reduce the burden on federal courts in districts
where large federal prisons were located by requiring the attack to be filed in the sentencing court
rather than a court in the district where the prisoner is incarcerated, as in traditional habeas
corpus proceedings.
9
petition under § 2241 when it “appears that the remedy by motion [under § 2255]
is inadequate or ineffective to test the legality of [the federal prisoner’s]
detention,” – as saving § 2255 from such serious constitutional problems. Id. at
1241 (quoting § 2255). We said, however, that it is only in the rare case that a
confluence of events will operate to render § 2255 “inadequate or ineffective” to
test the legality of a detention, thus opening the portal to § 2241 review of a barred
successive § 2255 claim. We held that the savings clause of § 2255 applies to an
otherwise barred 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.
Id. at 1244.
We formulated this test after reviewing the decisions of several of our sister
circuits examining the applicability of the savings clause to cases where a new rule
of statutory construction would afford relief for an otherwise foreclosed claim. In
Bailey v. United States, 516 U.S. 137 (1995), the Supreme Court narrowed the
“use” prong of 18 U.S.C. § 924(c)(1), which punishes anyone who uses or carries
a firearm during or in relation to a drug trafficking crime. The Court held that the
10
statute requires an active use of the firearm in the commission of the drug
trafficking crime, not mere possession of it. 516 U.S. at 150. Afterward, federal
defendants who had been convicted for mere possession challenged their
convictions, asserting they had been convicted for a “nonexistent crime.” Three of
our sister circuits held that the savings clause applied to permit claims of such a
fundamental defect in a conviction to be brought under § 2241, even though they
might otherwise be barred under § 2255. See In re Davenport, 147 F.3d 605, 611
(7th Cir. 1998); Triestman v. United States, 124 F.3d 361, 363 (2d Cir. 1997); In re
Dorsainvil, 119 F.3d 245, 248 (3d Cir. 1997).
The Seventh Circuit, in Davenport for example, noted that the Supreme
Court has long made clear that even non-constitutional claims are cognizable on
collateral attack where the petitioner alleges a “fundamental defect which
inherently results in a complete miscarriage of justice.” 147 F.3d at 609 (citing
Davis v. United States, 417 U.S. 333, 346 (1974), quoting Hill v. United States,
368 U.S. 424, 429 (1962)). In Davis, the petitioner sought to collaterally attack
his conviction, contending that a subsequent interpretation of the statute under
which he was convicted established that his conviction was for “an act that the law
does not make criminal.” Id. at 346. The Supreme Court held that there could be
“no room for doubt that such a circumstance ‘inherently results in a complete
11
miscarriage of justice.’” Id. at 346-47. In applying this rule to the Bailey claim
before it, the Seventh Circuit held that where a petitioner asserts that his
conviction and sentence are for an act that the law does not make criminal, and
where the petitioner has had and continues to have no reasonable opportunity to
obtain judicial correction of so fundamental a defect, that § 2255 could fairly be
said to be inadequate and its savings clause would permit habeas review under §
2241. 147 F.3d at 611.
In Wofford, we too held that an assertion of a fundamental defect in a
conviction or sentence accompanied by no prior or present opportunity for review
and correction triggers § 2255's savings clause. 177 F.3d at 1244-45. But we said
then that only a claim raised under a “circuit law busting, retroactively applicable
Supreme Court decision,” would be sufficient to pull this trigger. Id. at 1245.
Since Wofford’s sentencing claims were not based on a such a Supreme Court
decision, we left for another day the question of what sort of sentencing claim
might do. Id. at 1244-45. It appears that day has come.
1. Gilbert’s Begay/Archer claim satisfies the Wofford test
Gilbert’s Begay/Archer claim does not assert mere factual error in the
12
application of the sentencing guidelines.9 His claim is like a Bailey claim in that it
asserts error of fundamental dimension– enhancement of his sentence based upon
a nonexistent offense. Under Wofford, such a claim is entitled to collateral review
if it is 1) based upon a retroactively applicable Supreme Court decision; 2) which
establishes that the petitioner was convicted for a nonexistent offense; and, 3)
circuit law squarely foreclosed it at the time it should have been or was brought.
Id. at 1244.
A. Begay is a “circuit law busting, retroactive Supreme Court decision.”
In this case, despite some legal hemming and hawing, the government
ultimately concedes that Begay and Archer apply retroactively and that circuit law
squarely foreclosed a claim based upon them when Gilbert presented it to every
available court.10 We agree.
B. Begay establishes that Gilbert was convicted for a nonexistent
offense.
The district court found Gilbert to be a career offender. After Begay and
Archer, however, it is clear that he is not now, nor has he ever been a career
offender. Under § 4B1.2, a career offender is one with two prior violent felonies.
9
The government is correct that such errors do not assert a fundamental defect justifying
collateral review. Burke v. United States, 152 F.3d 1329, 1331-32 (11th Cir. 1998). Such errors
are corrigible on direct appeal. Id.
10
The government’s concessions may be found at pages 17, 35, and 37 of its brief.
13
Gilbert has now, and has only ever had, one prior violent felony. His sentence was
enhanced, therefore, based upon a nonexistent offense – being a career offender
with only one prior violent felony. Like the petitioner in Davis, he was sentenced
for “an act that the law does not make criminal.” There can be no doubt that such
a defect calls into question the fundamental legality of Gilbert’s conviction and
sentence.11
But the government says that Gilbert has no Wofford remedy because he
was not “convicted of a nonexistent offense.” We disagree. Whatever the merits
of this argument in the non-career-offender context, it has no application here.
For federal sentencing purposes, the act of being a career offender is
essentially a separate offense, with separate elements (two felony convictions; for
violent felonies), which must be proved, for which separate and additional
punishment is provided. Gilbert remains in jail today because he was found guilty
of the “offense” of being a career offender.
11
In fact, the defect may be of constitutional dimensions, since the right not to be
imprisoned for a nonexistent offense is probably inherent in the modern interpretation of
substantive due process. See Fiore v. White, 531 U.S. 225, 228-29 (2001) (due process violation
to continue to incarcerate state prisoner after state supreme court ruled that conduct defendant
had committed did not constitute a crime). The Supreme Court did not merely change the law
under which Gilbert was sentenced; it resolved an open question regarding the meaning of
“violent felony” under the ACCA, and by implication the career offender guideline, which made
clear that Gilbert, who was adjudicated prior to that resolution, was enhanced based upon a
nonexistent offense – being a career offender with only one prior violent felony. See Davenport,
147 F.3d at 611.
14
The Supreme Court has recognized that the enhancement of a non-capital
sentence to a capital one based upon proof of statutory “aggravating factors” also
establishes a separate “offense,” and raises the possibility that a defendant might
be “actually innocent” of that offense. Sawyer v. Whitley, 505 U.S. 333 (1992).
The Court recognized that, where review of such a claim is barred, the defendant
would have no remedy for a fundamentally defective sentence. In making an
exception for an otherwise barred claim where the petitioner asserts that he is
“actually innocent” of the aggravating factors that permit a capital sentence, the
Court said that there must be review in the case where the petitioner claims he is
actually “innocent of death.” Id. at 341.
Similarly, Gilbert is actually “innocent of death” – of the aggravating
factors – two prior violent felonies – that permit the enhancement of his sentence.
As Begay and Archer made clear, Gilbert did not have two prior violent felony
convictions when he was adjudicated a career offender. Accordingly, he is
innocent of the statutory “offense” of being a career offender (having two prior
violent felonies) and was sentenced, in part, for a nonexistent offense – being a
career offender with only one prior violent felony.
Two of our sister circuits have recently extended Sawyer’s reasoning about
capital sentences to the career offender context and held that where a petitioner
15
can demonstrate that he is actually innocent of being a career offender, the
petitioner is entitled to review of his sentence. See Haley v. Cockrell, 306 F.3d
257, 264 (5th Cir. 2002), vacated sub nom. Dretke v. Haley, 124 S. Ct. 1847;
United States v. Maybeck, 23 F.3d 888, 893-94 (4th Cir. 1994); United States v.
Mikalajunas, 186 F. 3d 490, 496 (4th Cir. 1999).12 The Second Circuit has
extended such review to all non-capital sentences. Spence v. Superintendent,
Great Meadow Corr. Facility, 219 F.3d 162 (2d Cir. 2000).
In extending the actual innocence exception to non-capital sentences, the
Fourth Circuit said that “we see little difference between holding that a defendant
can be innocent of the acts required to enhance a sentence in a death case and
applying a parallel rationale in non-capital cases.” Maybeck, 23 F.3d at 893. The
court went on:
In capital sentencing cases, the jury has determined guilt, and when
aggravating factors are present, the sentence is enhanced to one of
death. In non-capital enhancement cases, the length of a defendant’s
sentence may be aggravated by factors specified by the statute or the
Guidelines. Hence, a defendant in either a capital or non-capital case
would unless excepted from the [procedural bar] suffer the same
general consequence (an enhanced sentence) from being held
responsible for an act of which he or she is actually innocent.
12
Although Haley was vacated on other grounds, there is no reason to believe the Fifth
circuit has changed its views on the application of the actual innocence exception to bars on non-
capital sentencing review.
16
Id. at 893.
The Fifth Circuit in Haley agreed with the Fourth that colorable assertions
of actual innocence apply to permit review of barred sentencing claims in the
career offender context because the “fundamental purpose” of habeas corpus is to
see that “constitutional errors do not result in the incarceration of innocent
persons.” 306 F.3d at 265 (apparently assuming that an illegal career offender
enhancement would rise to a constitutional level). We agree.
Gilbert’s enhancement for being a career offender with only one prior
violent felony satisfies the Wofford requirement for a conviction for a nonexistent
offense. To accept the government’s position that the law provides Gilbert no
remedy for the clear wrong that has been done him is to elevate form so far over
substance as to make unrecognizable the concept of fair play and due process.
The remedy is review under § 2241 in the very limited circumstances approved by
Wofford, which we hold are present in this case – a Begay/Archer claim of
unlawful sentence enhancement based on a non-qualifying prior conviction.13
2. Gilbert is entitled to relief under § 2241 from his enhanced sentence
because he is actually innocent of his sentence enhancement and his
13
We reject the government’s contention that this rule will open the proverbial
“floodgates” to collateral attack on sentences. The rule we formulate here today is applicable
only in the rare circumstance of a retroactive Supreme Court decision that overturns clear circuit
precedent and which establishes that the petitioner is serving an unlawful sentence. When these
circumstances are present, relief is due.
17
continued incarceration for the illegal enhancement is a miscarriage of
justice.
Turning now to the merits of Gilbert’s § 2241 claim, we find as a matter of
fact that Gilbert is actually innocent of his sentence enhancement, as required for
relief. See Wofford, 147 F.3d at 1245 (“Once 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”) (citing Bousley v. United States, 523 U.S.
614 (1998), requiring factual innocence, not legal insufficiency). Gilbert is
factually innocent of the legal requirement for such an enhancement – two prior
violent felonies. He has only one.
Furthermore, there is no doubt that Gilbert’s present incarceration is the
result of the enhancement of his sentence for this nonexistent offense. The district
judge stated on the record in this case that, after he had adjudicated Gilbert to be a
career offender, he was counseled by the government and probation that he had no
choice under the then-mandatory Sentencing Guidelines but to enhance Gilbert’s
sentence under the career offender guideline, which provided for a minimum of
292 months incarceration. The maximum sentence Gilbert could have received
for his underlying drug conviction was 188 months – over 8 ½ years less. Gilbert,
18
therefore, necessarily would have received a significantly lower sentence absent
the career offender enhancement. See Maybeck, 23 F.3d at 894 (finding prejudice
under this circumstance).14 Further, Gilbert may be entitled to an amended
guideline range of 130-162 months under Amendment 706 after his career
offender status is vacated. Since he has already served over 171 months, he is, in
a very real sense, presently serving his illegal enhancement. Such a complete
miscarriage of justice entitles him to relief. See Burke, 152 F.3d at 1331-32.
III.
The animating principle underlying the writ of habeas corpus is fundamental
fairness. Engle v. Isaac, 456 U.S. 107, 126 (1982). Even as substantial
roadblocks to collateral review of procedurally barred claims have been erected,
the Supreme Court has consistently recognized that exceptions to these rules of
unreviewability must exist to prevent violations of fundamental fairness. Id. at
135. The principle of finality “must yield to the imperative of correcting a
fundamentally unjust incarceration.” Id. Gilbert’s sentence enhancement for a
nonexistent offense was fundamentally defective and his incarceration for that
enhancement is a miscarriage of justice. He is entitled to relief under § 2241.
14
The difference in sentences without the enhancement could have been as much as 11 ¾
years.
19
Accordingly, his sentence is due to be vacated and he is to be resentenced
without the career offender enhancement and with the benefit of any other
reduction to which, as a result, he may be entitled.
SENTENCE VACATED AND REMANDED FOR RESENTENCING.
20
MARTIN, Circuit Judge, concurring:
I fully concur in the majority’s conclusion that § 2255’s savings clause
applies and that Mr. Gilbert’s sentence and continued incarceration as a career
offender constitutes a fundamental miscarriage of justice entitling him to habeas
relief under 28 U.S.C. § 2241. I write separately only to note that the savings
clause also applies because Mr. Gilbert’s sentencing claim is “based upon a
retroactively applicable Supreme Court decision overturning circuit precedent.”
Wofford v. Scott, 177 F.3d 1236, 1244–45 (11th Cir. 1999). Mr. Gilbert is
entitled to habeas relief because, on the extraordinary facts of this case, the error
represents a “‘fundamental defect which inherently results in a complete
miscarriage of justice’” and this case “‘present[s] exceptional circumstances
where the need for the remedy afforded by the writ of habeas corpus is apparent.’”
Davis v. United States, 417 U.S. 333, 346, 94 S. Ct. 2298, 2305 (1974) (quoting
Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 471 (1962)); Burke v.
United States, 152 F.3d 1329, 1331–32 (11th Cir. 1998).
21