Case: 13-14224 Date Filed: 09/25/2014 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14224
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cv-00728-WS-M
HAROLD FRANKLIN WALTERS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(September 25, 2014)
Before HULL, MARCUS, and FAY, Circuit Judges.
PER CURIAM:
Case: 13-14224 Date Filed: 09/25/2014 Page: 2 of 8
Harold Franklin Walters, a federal prisoner proceeding pro se, appeals the
dismissal of his 28 U.S.C. § 2241 petition for writ of habeas corpus. We affirm.
I. BACKGROUND
In 2005, Walters was convicted of possession of child pornography, in
violation of 18 U.S.C. § 2252A(a)(5)(B). The district judge sentenced him to 97
months of imprisonment, followed by a life term of supervised release. Walters
appealed his conviction, and we affirmed. United States v. Walters, 182 F. App’x
944 (11th Cir. 2006) (per curiam). In March 2010, Walters filed a pro se 28 U.S.C.
§ 2255 motion to vacate and asserted (1) he did not confess to the crime via a taped
confession and no such tape existed, and (2) the government had introduced copies
of his emails at trial, which showed credit-card charges that did not exist. The
district judge denied the motion to vacate as untimely.
In November 2011, Walters filed an application for leave to file a second or
successive § 2255 motion to vacate in this court. He alleged the government had
fabricated emails, which were offered at trial to prove he had accessed an internet
pornography website and had paid with his credit card. He contended his credit
card statements did not show any such charges. He further argued the government
had alluded to a taped confession at trial, but neither he nor his attorneys ever saw
or heard the tape. He believed such a tape did not exist. Walters contended he had
attempted to recover the emails and tape for several years, to no avail. He believed
2
Case: 13-14224 Date Filed: 09/25/2014 Page: 3 of 8
only a judicial decree ordering the production of those materials would
demonstrate their nonexistence. We denied the application and concluded Walters
had not explained how the purported evidence would cause no reasonable
factfinder to find him guilty of possessing child pornography.
In February 2012, Walters filed a § 2241 petition and raised claims of actual
innocence and newly discovered evidence. In his memorandum in support,
Walters stated he wished to avail himself of the savings clause of § 2255(e), based
on the Supreme Court’s decision in House v. Bell, 547 U.S. 518, 126 S. Ct. 2064
(2006). He asserted our decision in Wofford v. Scott, 177 F.3d 1236, 1244-45
(11th Cir. 1999), did not foreclose merits review of his claims. He further
contended he had been deprived of any opportunity to develop his claims, based on
neglect by his attorney.
Walters again asserted, during his criminal trial, the government had referred
to a purported taped confession by Walters of possessing child pornography. In his
petition, Walters contended the tape did not exist. Walters also asserted the
government had altered or fabricated emails, which purportedly showed he had
accessed an internet pornography website and had paid for the site with a credit
card. He argued he never had an opportunity to advance these claims via a § 2255
proceeding and therefore had been denied proper review of his claims. He
3
Case: 13-14224 Date Filed: 09/25/2014 Page: 4 of 8
requested the district judge to permit him to develop his claims by ordering the
government to produce the tape and emails.
A magistrate judge issued a report and recommendation (“R&R”) and
recommended Walters’s § 2241 petition be denied. The magistrate judge
concluded House was inapplicable in this case, because Walters had not satisfied
the three-part requirement of Wofford, showing he could bring an action under §
2241. Nevertheless, the magistrate judge considered Walters’s actual innocence
claim in an abundance of caution and concluded Walters had not demonstrated he
was actually innocent of possessing child pornography. The district judge adopted
the R&R, denied the § 2241 petition, and dismissed the action.
II. DISCUSSION
On appeal, Walters argues the district judge did not review his actual
innocence claim properly, pursuant to McQuiggin v. Perkins, 569 U.S. ___, 133
S. Ct. 1924 (2013), and he requests us to define the review requirements under
McQuiggin. He further contends he should not have been required to offer actual
evidence of his factual innocence under Wofford and should have been allowed to
develop his claims via discovery or an evidentiary hearing.
We review de novo whether a prisoner may bring a 28 U.S.C. § 2241
petition under the savings clause of 28 U.S.C. § 2255(e). Williams v. Warden, Fed.
Bureau of Prisons, 713 F.3d 1332, 1337 (11th Cir. 2013). “Pro se pleadings are
4
Case: 13-14224 Date Filed: 09/25/2014 Page: 5 of 8
held to a less stringent standard than pleadings drafted by attorneys and will,
therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262,
1263 (11th Cir. 1998) (per curiam). Issues not raised in the district court generally
are deemed waived. Id.
Typically, a prisoner collaterally attacks the validity of his federal sentence
by filing a § 2255 motion in the district of conviction. 28 U.S.C. § 2255; Sawyer v.
Holder, 326 F.3d 1363, 1365 (11th Cir. 2003). Under very limited circumstances,
however, the “savings clause” of § 2255 permits a federal prisoner to file a habeas
petition under § 2241. Sawyer, 326 F.3d at 1365. Under the savings clause, a
judge may entertain a § 2241 petition if the petitioner establishes the remedy
provided for under § 2255 is “inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255(e). Because the savings clause is jurisdictional, a
petitioner must show § 2255 is “inadequate or ineffective” before the district judge
has jurisdiction to review the § 2241 petition. Williams, 713 F.3d at 1338-40.
When a prisoner previously has filed a § 2255 motion to vacate, he must
apply for and receive our permission before filing a successive § 2255 motion. 28
U.S.C. §§ 2244(b)(3), 2255(h). Standing alone, such restrictions on successive §
2255 motions do not render that section “inadequate or ineffective” within the
meaning of the savings clause. Gilbert v. United States, 640 F.3d 1293, 1308 (11th
Cir. 2011) (en banc) (“Gilbert II”). A petitioner who has filed and been denied a
5
Case: 13-14224 Date Filed: 09/25/2014 Page: 6 of 8
previous § 2255 motion may not circumvent the restrictions on successive § 2255
motions simply by filing a petition under § 2241. Id.
Although the scope of the § 2255(e) savings clause has not been fully
defined, we have noted, in dicta, a petitioner meets the requirements of the savings
clause, when (1) the petitioner’s claim is based on a retroactively applicable
Supreme Court decision; (2) the holding of that Supreme Court decision
establishes the petitioner was convicted of a non-existent offense; and (3) circuit
law squarely foreclosed such a claim at the time it otherwise should have been
raised at the petitioner’s trial, on appeal, or in his first § 2255 motion. Wofford,
177 F.3d at 1244; see also Turner v. Warden Coleman FCI (Medium), 709 F.3d
1328, 1333-34 (11th Cir.) (describing the three-part test in Wofford as “dicta”),
cert. denied, 133 S. Ct. 2873 (2013). While we have stated Wofford’s three-step
test was dicta, we have continued to recognize the limitations imposed by the
Wofford test in determining whether a prisoner can bring a § 2241 petition under
the savings clause. Williams, 713 F.3d at 1341-44 (recognizing (1) a claim must be
based on a retroactively applicable Supreme Court decision, and (2) the Supreme
Court “must have overturned a circuit precedent that squarely resolved the claim so
that the petitioner had no genuine opportunity to raise it at trial, on appeal, or in his
first § 2255 motion”); see also Bryant v. Warden, FCC Coleman, 738 F.3d 1253,
1256-57 (11th Cir. 2013) (applying a five-part test derived from Wofford to
6
Case: 13-14224 Date Filed: 09/25/2014 Page: 7 of 8
determine whether the savings clause allowed a § 2241 petitioner to bring his
petition, notwithstanding § 2255’s limitations on second or successive motions).
A petitioner may not argue the merits of his claim until he has “open[ed] the
portal” to a § 2241 proceeding by demonstrating the savings clause applies to his
claim. Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253, 1262 (11th Cir.
2013). Once the savings clause “open[s] the portal to a § 2241 proceeding, the
proper inquiry is whether the petitioner can establish actual innocence of the crime
for which he has been convicted.” Wofford, 177 F.3d at 1244 n.3. “[A]ctual
innocence means factual innocence, not mere legal insufficiency.” Bousley v.
United States, 523 U.S. 614, 623, 118 S. Ct. 1604, 1611 (1998).
Walters previously filed a § 2255 motion and raised the same claims
asserted in his § 2241 petition, and the district judge denied the motion as
untimely. In addition, before filing his § 2241 petition, Walters filed, and we
denied, an application for leave to file a second or successive § 2255 motion,
which again raised the same claims alleged in his § 2241 petition. It is therefore
evident Walters filed the § 2241 petition in an attempt to circumvent the restriction
on successive § 2255 motions. See 28 U.S.C. § 2255(h); Gilbert II, 640 F.3d at
1308.
Walters provides no basis for his assertion that § 2255 is “inadequate or
ineffective” in his case, other than the fact that he has not been permitted to
7
Case: 13-14224 Date Filed: 09/25/2014 Page: 8 of 8
develop his claims. None of Walters’s claims are based on a retroactively
applicable Supreme Court decision, and he cannot meet his burden to “open the
portal” to a § 2241 proceeding. Wofford, 177 F.3d at 1244 & n.3. Although
Walters argues McQuiggin changed the review process and applies retroactively,
he did not raise those arguments in the district court, and they are deemed waived.
Tannenbaum, 148 F.3d at 1263.
To the extent Walters argues he should be permitted to file a § 2241 petition
because he is actually innocent, his contention is foreclosed, because he has not
met the threshold requirement for showing the § 2255(e) savings clause applies.
Because Walters has failed to show his claim satisfies the savings clause, he cannot
proceed under § 2241. 28 U.S.C. § 2255(e); Sawyer, 326 F.3d at 1365.
Accordingly, the district judge did not have jurisdiction over Walters’s § 2241
petition and did not err in dismissing it. Williams, 713 F.3d at 1339-40.
AFFIRMED.
8