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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14159
Non-Argument Calendar
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D.C. Docket No. 2:09-cv-00114-LGW-JEG
JAMES CHAPLIN,
Petitioner-Appellant,
versus
WARDEN,
US ATTORNEY GENERAL,
Respondents-Appellees.
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Appeal from the United States District Court
for the Southern District of Georgia
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(April 25, 2014)
Before HULL, JORDAN and BLACK, Circuit Judges.
PER CURIAM:
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James Chaplin, a federal prisoner, appeals the district court’s denial of his 28
U.S.C. § 2241 habeas corpus petition, filed pursuant to 28 U.S.C. § 2255(e)’s
“savings clause.” In his petition, Chaplin asserted that his prior 1987 escape
conviction under Fla. Stat. § 944.40 was not a violent felony in light of Begay v.
United States, 553 U.S. 137 (2008), and Chambers v. United States, 555 U.S. 122
(2009). Thus, he contended he had been incorrectly sentenced as an armed career
criminal under 18 U.S.C. § 924(e), and was “actually innocent” of the sentencing
enhancement. The district court originally dismissed Chaplin’s petition after
finding the savings clause was inapplicable. On appeal in 2012, we accepted the
Government’s concession that Chaplin could utilize the savings clause to bring his
petition, and remanded for the district court to consider his petition on the merits.
After the district court denied the petition on the merits on remand, Chaplin again
appeals on the ground that his prior conviction for escape under Fla. Stat. § 944.40
was not a violent felony under the Armed Career Criminal Act (ACCA).
Although we previously remanded Chaplin’s § 2241 petition to the district
court for consideration of the merits based on the Government’s concession that
the savings clause applied, we have recently held the applicability of the savings
clause is a threshold jurisdictional issue that cannot be waived. Williams v.
Warden, 713 F.3d 1332, 1337-38 (11th Cir. 2013); see also Bryant v. Warden, 738
F.3d 1253, 1271 (11th Cir. 2013) (holding we could not accept the government’s
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concession regarding the applicability of the savings clause). Thus, we may no
longer rely on the Government’s concession. Because the applicability of the
savings clause is a threshold jurisdictional issue that cannot be waived, we must
sua sponte determine whether we have subject matter jurisdiction by determining
whether the savings clause applies. See Williams, 713 F.3d at 1340-41.
In Williams, the petitioner filed a § 2241 petition for habeas corpus, alleging
his prior burglary convictions under Fla. Stat. § 810.02, were not violent felonies
for purposes of the ACCA sentencing enhancement. Id. at 1334-35. Because of
the ACCA enhancement, he was sentenced to a term of imprisonment above the
otherwise applicable ten-year statutory maximum sentence. Id. at 1334. We
explained that, for the savings clause to apply, a prisoner’s § 2241 claim must have
been squarely foreclosed by prior Circuit precedent at the time of his trial, direct
appeal, and first § 2255 motion. Id. at 1343. However, Williams could not make
that showing because, during his direct and collateral attacks, no Circuit precedent
squarely held that burglary of a dwelling under § 810.02 was a violent felony under
the ACCA. Id. at 1344-45. Thus, “it was an open question” whether § 810.02
would categorically constitute a violent felony under the ACCA. Id. at 1345.
We recently reaffirmed Williams, and held that, to show that a prior § 2255
motion was inadequate or ineffective to test the legality of his detention, a
petitioner must demonstrate, inter alia, that:
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throughout his sentencing, direct appeal, and first § 2255 proceeding,
our Circuit’s binding precedent had specifically addressed his distinct
prior conviction that triggered § 924(e) and squarely foreclosed the
§ 924(e) claim that he was erroneously sentenced above the 10-year
statutory maximum penalty in § 924(a).
Mackey v. Warden, 739 F.3d 657, 661 (11th Cir. 2014) (emphasis added); see also
Bryant, 738 F.3d at 1274.
Chaplin cannot demonstrate that § 2255 was an inadequate or ineffective
remedy because he cannot show that an escape conviction under Fla. Stat.
§ 944.40 1 was a violent felony under the ACCA during his trial and sentencing in
2003, direct appeal in 2004, and § 2255 motion in 2005. See Mackey, 739 F.3d at
661; see also Bryant, 738 F.3d at 1274.2 This Court held in 2001 that an escape
conviction constituted a crime of violence for purposes of the career offender
criteria of the Sentencing Guidelines. United States v. Gay, 251 F.3d 950, 954
(11th Cir. 2001). However, that case did not “squarely foreclose” Chaplin’s
argument, because Gay involved the career offender criteria rather than the ACCA,
and analyzed a Georgia escape statute rather than the Florida statute at issue in
1
The version of Florida’s escape statute in effect in 1987, when Chaplin was convicted,
provided:
Any prisoner confined in any prison, jail, road camp, or other penal institution,
state, county, or municipal, working upon the public roads, or being transported to
or from a place of confinement who escapes or attempts to escape from such
confinement shall be guilty of a felony of the second degree.
Fla. Stat. § 944.40 (1985).
2
To the extent Chaplin argues he was “actually innocent” of the sentencing enhancement,
we have expressly rejected such a claim. See Williams, 713 F.3d at 1345-46 (holding actual
innocence refers only to factual innocence of crimes, and a sentencing challenge regarding
predicate ACCA offenses constitutes a claim of legal innocence).
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Chaplin’s case. See id. at 952 (analyzing Gay’s escape conviction under O.C.G.A.
§ 16-10-52); see also Mackey, 739 F.3d at 661 (holding the binding precedent must
have “specifically addressed his distinct prior conviction”). As in Williams, it was
an open question during Chaplin’s sentencing, direct appeal, and § 2255 motion
whether an escape conviction under Fla. Stat. § 944.40 constituted a violent felony
under the ACCA. See Williams, 713 F.3d at 1345. Thus, because no case from
this Court squarely foreclosed Chaplin’s claim so as to render § 2255 an
inadequate or ineffective remedy, “there was no circuit precedent for Begay to
bust.” See id. at 1347 (“[A]t the time of Williams’s first § 2255 motion, there was
no circuit precedent for Begay to bust.”).
Accordingly, Chaplin is unable to demonstrate the remedy provided under
§ 2255 is “inadequate or ineffective to test the legality of his detention.” See 28
U.S.C. § 2255(e). Thus, the district court had no jurisdiction to consider the merits
of Chaplin’s § 2241 petition. See Williams, 713 F.3d at 1337 (explaining if we
determine at any time that we lack subject matter jurisdiction, we must dismiss the
action). We vacate the district court’s denial of Chaplin’s § 2241 petition, and
remand for the district court to dismiss the petition for lack of subject matter
jurisdiction.
VACATED AND REMANDED WITH INSTRUCTIONS.
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