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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 13-12702
Non-Argument Calendar
D.C. Docket No. 5:10-cv-00339-JDW-PRL
JOHN K. ELAM,
Petitioner-Appellant,
versus
WARDEN, FCC COLEMAN-MEDIUM,
Respondent-Appellee.
Appeal from the United States District Court for
the Middle District of Florida
(October 17, 2014)
Before HULL, WILLIAM PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
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John Elam, proceeding pro se, filed a 28 U.S.C. § 2241 petition for a writ of
habeas corpus challenging his 322-month total sentence for three convictions
related to a 1996 armed robbery. The district court dismissed Elam’s § 2241
petition for lack of subject matter jurisdiction.
Elam appeals. After review of the record and consideration of the parties’
briefs on appeal, we affirm.
I. FACTUAL & PROCEDURAL BACKGROUND
A. Convictions and Sentences in 1998
In October 1996, Elam robbed several victims at a drug store at gunpoint. In
1997, Elam was indicted on: (1) one count of robbery, in violation of 18 U.S.C.
§ 1951(a) (“Count 1”); (2) one count of using a firearm during and in relation to a
crime of violence, in violation of 18 U.S.C. § 924(c) (“Count 2”); and (3) one
count of being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1) (“Count 3”). In 1998, a jury found Elam guilty of all three counts.
The maximum statutory penalties for Elam’s three convictions were (1) 20
years’ imprisonment for Count 1, (2) a mandatory term of 5 years’ imprisonment
for Count 2, and (3) life imprisonment for Count 3. Relevant to this appeal, the
maximum statutory penalty for Count 3 increased from 10 years’ imprisonment to
life imprisonment because the sentencing court found that Elam had four prior
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state felony convictions that qualified him as an armed career criminal under the
Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”) . See 18 U.S.C.
§ 924(a)(2), (e).
Specifically, Elam’s presentence investigation report (“PSI”) cataloged his
extensive prior criminal activity, which yielded a criminal history category of VI.
Elam’s prior criminal activity included these Florida state court convictions:
(1) two separate 1983 burglary convictions, in violation of Fla. Stat. § 810.02(3);
(2) one 1989 conviction for the sale, purchase, or delivery of a controlled substance
on or near school property, in violation of Fla. Stat. § 893.13(1)(c); and (3) one
1994 conviction for possession with intent to sell, purchase, manufacture, or
deliver cocaine, in violation of Fla. Stat. § 893.13(2)(b).1 The PSI noted that these
four prior felony convictions were predicate offenses that qualified Elam as a
career offender under U.S.S.G. § 4B1.1 and an armed career criminal under the
ACCA and U.S.S.G. § 4B1.4.
The applicable offense level under the career offender guideline was 32.
The applicable offense level under the armed career criminal guideline was 34.
1
Elam’s prior criminal activity also included these Florida state court convictions:
(1) three separate convictions for resisting an officer—in 1988, 1992, and 1993; (2) one 1992
conviction for marijuana possession; and (3) three separate convictions for obstruction of
justice—in 1991, 1992, and 1993.
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Applying the higher applicable offense level, the PSI determined that Elam’s
offense level was 34.
Based on his criminal history category of VI and an offense level of 34,
Elam’s mandatory guidelines range was 262 to 327 months’ imprisonment. 2
Elam, through counsel, objected to the PSI in several ways—both in writing
and at his sentencing hearing. But, none of his objections related to his four prior
state felony convictions or his classification as an armed career criminal.
On May 29, 1998, the district court sentenced Elam to a total sentence of
322 months’ imprisonment, near the high-end of the guidelines range. This
sentence was comprised of 240 months on Count 1; 262 months on Count 3, to run
concurrently with the sentence on Count 1; and 60 months on Count 2, to run
consecutively to the sentences on Counts 1 and 3.
B. Direct Appeal in 1998
Elam appealed, arguing that the district court erred (1) by denying Elam’s
motion to suppress; (2) by denying his motion to sever Count 3 (i.e., being a felon
in possession of a firearm); and (3) by admitting certain police testimony. This
Court affirmed Elam’s convictions and sentences on August 17, 1999.
2
While the Guidelines are now treat as advisory, the Guidelines were mandatory at the
time of Elam’s sentencing in 1998. See United States v. Booker, 543 U.S. 220, 246, 125 S. Ct.
738, 757 (2005) (holding that the guidelines must be treated as advisory).
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C. First § 2255 Motion in 2000
In November 2000, Elam filed an original 28 U.S.C. § 2255 motion to
vacate, set aside, or correct sentence, in which he argued only that he received
ineffective assistance of counsel in ways unrelated to his sentence. On August 7,
2002, the district court denied Elam’s § 2255 motion. Elam did not appeal.
D. Instant § 2241 Petition in 2010
On July 26, 2010, Elam filed his first § 2241 habeas petition for a writ of
habeas corpus. This petition is presently before this Court.
In his § 2241 petition, Elam argues that he is “actually, factually, and legally
innocent of being an armed career offender” because he does not have the required
felonies to qualify for the statutory ACCA sentencing enhancement in 18 U.S.C.
§ 924(a)(e). Elam acknowledges that he cannot raise these claims in a successive
§ 2255 motion because (1) he previously filed a § 2255 motion and (2) he does not
meet the statutory requirements for filing a second or successive § 2255 motion.
See 28 U.S.C. § 2255.
Notwithstanding the statutory bar to filing a second § 2255 motion, Elam
argues that the savings clause in § 2255(e) permits him to raise his claims in a
§ 2241 petition. Specifically, Elam argues that pursuing a remedy under § 2255 at
this juncture would be “inadequate or ineffective” within the meaning of
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§ 2255(e)’s savings clause because (1) he “is only allowed to file one original
§ 2255 motion” and (2) “a successive § 2255 motion does not meet the
requirements of [the] issue [in his § 2241 petition] because he is arguing a statutory
change in the law,” rather than a constitutional change in law.
In his § 2241 petition, Elam argues that his two separate 1983 state burglary
convictions were not violent felonies under the ACCA because (1) no violence
occurred, nobody was armed, and nobody was present; (2) he pled guilty to
entering the curtilage of a dwelling, rather than the dwelling itself; and (3) the
Florida statute under which he pled guilty defined burglary more broadly than
generic burglary is defined.
Elam also argues that his 1994 state drug conviction was not a qualifying
ACCA predicate offense. In particular, Elam argues that the Florida statute under
which he pled guilty covers simple possession; and, therefore, it is unclear whether
he committed simple possession or possession with intent to sell.3 He also argues
that this Florida statute of conviction was ambiguous.
3
The government concedes that Elam’s 1993 state drug conviction “might have been
treated as only a third-degree felony.” We note that, even without that 1993 conviction, Elam
still had three ACCA-qualifying felony convictions, which were all that the ACCA enhancement
required. See 18 U.S.C. § 924(e)(1).
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On May 8, 2013, the district court determined that the savings clause of
§ 2255(e) did not permit Elam to raise his claims in a § 2241 petition. Therefore,
the district court concluded that it lacked subject matter jurisdiction to entertain
Elam’s § 2241 petition and, thus, dismissed Elam’s petition.
Elam now appeals. 4
II. DISCUSSION
A federal prisoner who wishes to file a second or successive § 2255 motion
must move this Court for an order authorizing the district court to consider such a
motion. See 28 U.S.C. § 2255(h) (cross-referencing 28 U.S.C. § 2244). We may
grant such authorization only if the proposed motion contains claims premised on
either (1) “newly discovered evidence that, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found the movant guilty of the
offense,” or (2) “a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable.” Id.
Elam acknowledges that his present claims do not satisfy the statutory
requirements for filing a second or successive § 2255 motion.
4
The availability of habeas relief under 28 U.S.C. § 2241 presents a question of law that
we review de novo. See Cook v. Wiley, 208 F.3d 1314, 1317 (11th Cir. 2000).
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Nevertheless, Elam attempts to attack the imposition of his sentence through
a § 2241 habeas petition. He can do so, however, only if the “savings clause” of
§ 2255(e) opens the portal to relief under § 2241. And, § 2255(e) opens the portal
to § 2241 only if “the remedy by [a § 2255] motion is inadequate or ineffective to
test the legality of [Elam’s] detention.”5 28 U.S.C. § 2255(e); Bryant v. Warden,
FCC Coleman-Medium, 738 F.3d 1253, 1262 (11th Cir. 2013).
The savings clause in § 2255(e) is a jurisdictional provision. Williams v.
Warden, Fed. Bureau of Prisons, 713 F.3d 1332, 1339-40 (11th Cir. 2013), cert.
denied,___ S. Ct. ___, 2014 WL 1392365 (Oct. 6, 2014). Thus, before the district
court has subject matter jurisdiction to review a § 2241 petition, the petitioner must
show that the savings clause is satisfied. See id. A hopeful § 2241 petitioner may
not argue the merits of his claim until he has “open[ed] the portal” to a § 2241
proceeding by demonstrating that the savings clause applies to his claim. See
Wofford v. Scott, 177 F.3d 1236, 1244 n.3 (11th Cir. 1999); see also Williams, 713
F.3d at 1339-40.
5
As noted above, when a prisoner such as Elam previously filed a § 2255 motion to
vacate, he must apply for and receive permission from this Court before filing a successive
§ 2255 motion. 28 U.S.C. §§ 2244(b)(3), 2255(h). These restrictions on successive § 2255
motions, standing alone, 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).
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Here, based on our binding precedent, Elam has not satisfied any of the
requirements to access § 2241 through the savings clause portal in § 2255(e). See
Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253, 1274 (11th Cir. 2013);
Williams v. Warden, Fed. Bureau of Prisons, 713 F.3d 1332, 1343 (11th Cir.
2013); Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999).
The district court correctly determined that it lacked subject matter
jurisdiction to review Elam’s § 2241 petition on the merits. See Williams, 713
F.3d at 1339-40. 6
III. CONCLUSION
For the reasons stated above, we affirm the district court’s dismissal of
Elam’s § 2241 petition for lack of subject matter jurisdiction under 28 U.S.C.
§ 2255(e). 7
AFFIRMED.
6
Elam also argues that he was improperly sentenced as a career offender. However, when
sentencing Elam, the district court relied on the armed career criminal guideline, not the career
offender guideline. Because the district court did not rely on the career offender guideline in
sentencing Elam, we need not entertain Elam’s arguments as to that issue.
7
Because we lack subject matter jurisdiction, we do not address the government’s
procedural default arguments.
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WILLIAM PRYOR, Circuit Judge, concurring:
I concur that we must dismiss this petition for a writ of habeas corpus. See
United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993) (“[I]t is the firmly
established rule of this Circuit that each succeeding panel is bound by the holding
of the first panel to address an issue of law, unless and until that holding is
overruled en banc, or by the Supreme Court.”). But for the reasons explained in my
concurrence in Samak v. Warden, FCC Coleman-Medium, 766 F.3d 1271, 1275–95
(11th Cir. 2014) (Pryor, J., concurring), our decision in Bryant v. Warden, FCC
Coleman-Medium, 738 F.3d 1253 (11th Cir. 2013), is wrong.
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