UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7496
CARLOS DEMORIS DARDEN,
Petitioner - Appellant,
v.
D.R. STEPHENS,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
Chief District Judge. (5:09-hc-02152-FL)
Submitted: March 31, 2011 Decided: April 29, 2011
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Carlos Demoris Darden, Appellant Pro Se. Michael Gordon James,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlos Darden appeals the district court’s judgment
dismissing his 28 U.S.C.A. § 2241 (West Supp. 2010) petition for
a writ of habeas corpus. We affirm.
Darden pled guilty in 2005 to one count of possession
of a firearm by a convicted felon in violation of 18 U.S.C.
§ 922(g)(1) (2000) and was sentenced as a career offender
pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(a)(2)
(2003). He appealed, although he did not challenge his career
offender enhancement. We affirmed. United States v. Darden,
184 F. App’x 353 (4th Cir. 2006) (unpublished). Darden filed a
motion to vacate pursuant to 28 U.S.C.A. § 2255 (West Supp.
2010), but again, he did not challenge the validity of his
career offender enhancement. The district court dismissed his
motion to vacate, and we denied a certificate of appealability
and dismissed. United States v. Darden, 269 F. App’x 255
(4th Cir. 2008) (unpublished).
Darden has now filed a petition for a writ of habeas
corpus pursuant to § 2241. He argues that the Supreme Court’s
holding in Chambers v. United States, 555 U.S. 122 (2009),
rendered one of his prior convictions no longer a crime of
violence, and accordingly, not a proper predicate for his USSG
§ 2K2.1(a)(2) enhancement. The district court concluded that
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his claim was beyond the reach of § 2255’s savings clause and
dismissed his petition. This appeal followed.
The savings clause of § 2255 allows a prisoner to
pursue traditional habeas relief by petition under § 2241 when
it appears that the remedy allowed by § 2255 is inadequate or
ineffective to test the legality of the prisoner’s detention.
We have held that § 2255 is inadequate or ineffective, and
§ 2241 may be used to attack a federal conviction when
(1) at the time of conviction settled law of this
circuit or the Supreme Court established the legality
of the conviction; (2) subsequent to the prisoner’s
direct appeal and first § 2255 motion, the substantive
law changed such that the conduct of which the
prisoner was convicted is deemed not to be criminal;
and (3) the prisoner cannot satisfy the gatekeeping
provisions of § 2255 because the new rule is not one
of constitutional law.
In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000). In addition
to the language in Jones that refers only to the conduct of
conviction, we have also noted that we have not “extended the
reach of the savings clause to those petitioners challenging
only their sentence.” United States v. Poole, 531 F.3d 263, 267
n.7 (4th Cir. 2008).
Darden argues, though, that we should extend the
savings clause to reach his claims in light of Gilbert v. United
States, 609 F.3d 1159 (11th Cir.), vacated, 625 F.3d 716
(11th Cir. 2010). In that case, a panel of the Eleventh Circuit
concluded, under facts similar to these, that a petitioner was
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able to challenge a sentencing enhancement using § 2241 based on
a claim of “actual innocence” of the enhancement.
We note, however, that during the pendency of this
appeal, the Eleventh Circuit has vacated its holding in Gilbert
and set the matter for en banc rehearing. Gilbert v. United
States, 625 F.3d 716 (11th Cir. 2010). In addition, the claim
that Darden seeks to advance has been rejected by the Third
Circuit, albeit in unpublished authority. See United States v.
Kenney, 391 F. App’x 169 (3d Cir. 2010) (unpublished).
Because our cases have confined the § 2255 savings
clause to instances of actual innocence of the underlying
offense of conviction, and because the only case from a sister
circuit holding to the contrary has been vacated, we decline to
extend the reach of § 2255’s savings clause. Accordingly we
affirm the judgment of the district court. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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