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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-10272
Non-Argument Calendar
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D.C. Docket No. 2:12-cv-00136-LGW-JEG
BENJAMIN C. PRICE,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
DEPARTMENT OF JUSTICE,
FEDERAL BUREAU OF PRISONS,
WARDEN, FCI JESUP,
Respondents-Appellees.
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Appeal from the United States District Court
for the Southern District of Georgia
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(January 6, 2014)
Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
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Benjamin Price, a federal prisoner, appeals pro se the dismissal of his 28
U.S.C. § 2241 petition, filed pursuant to the 28 U.S.C. § 2255(e) savings clause.
On appeal, Price argues that his Armed Career Criminal Act (“ACCA”) claim in
regard to his 1996 Indiana conviction for reckless conduct was not properly
reviewed in Price’s original 28 U.S.C. § 2255 motion. Price concludes that his
§ 2255 motion was ineffective and inadequate and allowed Price to file this instant
motion under the savings clause of § 2255(e). Price also argues that he did not
receive effective assistance of counsel in connection with his decision to plead
guilty, presumably to the 1996 Indiana conviction.
We review de novo the availability of relief under § 2241. Darby v. Hawk-
Sawyer, 405 F.3d 942, 944 (11th Cir. 2005). Typically, a petitioner collaterally
attacks the validity of his federal sentence by filing a motion, under § 2255, in the
district of conviction. 28 U.S.C. § 2255; Sawyer v. Holder, 326 F.3d 1363, 1365
(11th Cir. 2003). Section 2255(e) bars a § 2241 petition if the prisoner has failed
to seek or has already been denied relief on a § 2255 motion, unless it also appears
that the remedy by § 2255 motion is inadequate or ineffective to test the legality of
his detention. 28 U.S.C. § 2255(e); see also Antonelli v. Warden, U.S.P. Atlanta,
542 F.3d 1348, 1351 n.1 (11th Cir. 2008) (explaining that a § 2255 motion is the
exclusive remedy for a federal prisoner to collaterally attack his conviction and
sentence, except in the rare cases where it is inadequate to do so). If a petitioner
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files a § 2255 motion and it is denied, he may not circumvent the restriction on
second or successive § 2255 motions simply by filing a petition under § 2241.
Antonelli, 542 F.3d at 1351-52.
We have interpreted the exception in § 2255(e), commonly referred to as the
“savings clause,” to apply when (1) a claim is based upon a retroactively
applicable Supreme Court decision; (2) the holding of the Supreme Court decision
establishes that the petitioner was convicted for an offense that is now nonexistent;
and (3) circuit law squarely foreclosed such a claim at the time it otherwise should
have been raised in the trial, appeal, or first § 2255 motion. Sawyer, 326 F.3d at
1365. We further have held that a sentencing claim involving the statutory
maximum may pass muster under the savings clause if the claim is based on a
retroactively applicable Supreme Court decision and the decision overturned a
circuit precedent that squarely resolved the claim so that the petitioner had no
genuine opportunity to raise it in the trial court, on direct appeal, or in his first
§ 2255 motion. Williams v. Warden, 713 F.3d 1332, 1343 (11th Cir. 2013). The
petitioner bears the burden of presenting evidence that affirmatively shows the
inadequacy or ineffectiveness of the § 2255 remedy. Turner v. Warden Coleman
FCI (Medium), 709 F.3d 1328, 1333 (11th Cir.), cert. denied, No. 12-10422, __
U.S. __ (U.S. June 24, 2013).
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Under the ACCA, a defendant is subject to a 15-year statutory minimum
sentence where he both violated § 922(g) and has three distinct prior convictions
for a violent felony, serious drug offense, or both. 18 U.S.C. § 924(e)(1). Section
924(e) defines a “violent felony” as:
any crime punishable by imprisonment for a term exceeding one year
. . . that–
(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another . . . .
Id. § 924(e)(2)(B). The residual clause of § 924(e)(2)(B)(ii) encompasses any
crime in which “the risk posed . . . is comparable to that posed by its closest analog
among the enumerated offenses.” United States v. Gandy, 710 F.3d 1234, 1237
(11th Cir. 2013) (quoting James v. United States, 550 U.S. 192, 203, 127 S. Ct.
1586, 1594 (2007)).
In Begay v. United States, the Supreme Court held that the term “violent
felony” in the ACCA did not apply to “every crime that presents a serious potential
risk of physical injury to another,” but only to crimes that are “roughly similar, in
kind as well as in degree of risk posed,” to the examples listed in the ACCA,
namely burglary, arson, extortion, or crimes involving the use of explosives. 553
U.S. 137, 142-43, 128 S. Ct. 1581, 1584-85 (2008). The Supreme Court stated that
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the enumerated crimes typically involve purposeful, violent, and aggressive
conduct. Id. at 144-45, 128 S. Ct. at 1586. Therefore, the Court concluded that
New Mexico’s crime of driving under the influence did not qualify as a violent
felony under the residual clause of the ACCA. Id. at 148, 128 S. Ct. at 1588.
In Sykes v. United States, the Supreme Court held that an Indiana offense of
knowingly or intentionally fleeing from a law enforcement officer in a vehicle
constituted a violent felony under the residual clause of the ACCA. 564 U.S. __,
__, 131 S. Ct. 2267, 2270-77 (2011). The Supreme Court compared this offense to
the ACCA enumerated offenses and determined that vehicle flight is akin to arson
and burglary because vehicle flight poses a danger of collateral damage to others
and creates a risk of violent confrontation with the police. Id. at ___, 131 S. Ct. at
2273-75.
To determine whether a prior conviction qualifies as a violent felony,
generally we use a categorical approach that looks only to the fact of conviction
and the statutory definition of the prior offense and does not generally consider the
particularized facts disclosed by the record of conviction. Turner, 709 F.3d at
1335. However, when the law under which the defendant has been convicted
contains statutory phrases that cover several different generic crimes, the modified
categorical approach permits a court to determine which statutory phrase was the
basis for the conviction by consulting the trial record, including charging
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documents, plea agreements, transcripts of plea colloquies, findings of fact and
conclusions of law from a bench trial, and jury instructions and verdict forms. Id.
Here, as a preliminary matter, Price could have raised any ineffective
assistance of counsel claim in his original § 2255 motion, and thus Price may not
raise such a claim in a § 2241 petition. See Antonelli, 542 F.3d at 1351, 1352 n.1.
As for Price’s ACCA claim, Price’s original § 2255 motion was not
inadequate or ineffective within the statutory meaning of § 2255(e). Price received
his one procedural opportunity to raise his claim when he raised the same ACCA
sentencing claim in his unsuccessful § 2255 motion in the Northern District of
Indiana. See Williams, 713 F.3d at 1343; Antonelli, 542 F.3d at 1351, 1352 n.1.
Furthermore, the Northern District of Indiana and the Seventh Circuit each fully
considered the relevant and then-current law when they determined that Price’s
prior Indiana convictions for criminal recklessness qualified as violent felonies
under the ACCA. Even after Begay and Sykes, Price’s 1996 Indiana conviction
qualified as a violent felony because, based on the pertinent documents and the
modified categorical approach, Price intentionally fired a shotgun in a manner that
created a serious risk of injury to another person. Price has not identified any
circuit authority that frustrated and squarely foreclosed his opportunity to raise his
claim in the trial court, on direct appeal, and in § 2255 proceedings. Therefore,
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Price has not met his burden to show that the § 2255 savings clause permitted Price
to file the instant § 2241 motion.
AFFIRMED.
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