[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 1, 2008
No. 05-12310 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-23148-CV-JEM
FREDDIE LEE SMITH,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Loren Grayer, Warden at FCI-Miami,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 1, 2008)
Before BIRCH, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Freddie Lee Smith, a federal prisoner proceeding pro se, appeals the district
court’s dismissal of his 28 U.S.C. § 2241 petition, which was construed as a
motion to vacate, correct, or set aside a sentence under 28 U.S.C. § 2255, as
impermissibly successive, and the denial of his motion for rehearing, which the
district court construed as a motion under Federal Rule of Civil Procedure 59(e) to
alter or amend the judgment. On appeal, Smith argues that he is entitled to file a
§ 2241 petition through § 2255’s savings clause because (1) he is relying on
Alabama v. Shelton, 535 U.S. 654, 122 S. Ct. 1764 (2002), which provides a new
rule of constitutional law that is retroactively applicable, and (2) his case is within
the spirit of Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999), even though it may
not meet all three requirements set forth in Wofford. For the following reasons, we
AFFIRM.
1. BACKGROUND
Smith is serving a life sentence for conspiracy to possess cocaine with intent
to distribute. In December 2004, he filed a pro se habeas corpus petition pursuant
to 28 U.S.C. § 2241. Smith acknowledged in his petition that he had previously
filed more than one § 2255 motion, and attached a copy of a decision by this court
denying an application for leave to file a second or successive § 2255 motion, but
he argued that his claims involved a “fundamental defect” in his sentencing,
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triggering the savings clause of § 2255. (R1-1 at 3-4). Smith claimed that (1) the
sentence for his federal conviction was unconstitutionally enhanced based on a
state conviction from 1978 that was obtained in violation of his right to counsel
under the Sixth Amendment, in light of the Supreme Court’s decision in Shelton;
(2) his counsel in his federal trial was ineffective because the issue of whether
Smith was represented by counsel in his 1978 state conviction was never
investigated; (3) he was actually innocent of 1978 state conviction because he was
charged with possession of cannabis, but the substance was actually parsley; (4)
the trial court in the 1978 proceedings misadvised Smith that his conviction and
sentence to 18 months of probation could not be used against him in a later case;
and (5) the 1978 offense does not constitute a conviction under Florida law
because he pled nolo contendere and adjudication was withheld.
A magistrate judge issued a report recommending the dismissal of Smith’s
peition. The magistrate judge found that the court did not have jurisdiction to
review the expired state sentence because Smith did not meet the “in custody”
requirement as to that sentence. (R1-4 at 1). Therefore, the magistrate judge
construed Smith’s § 2241 petition as a § 2255 motion to vacate, attacking his
current federal judgment and sentence. The magistrate judge then found that Smith
had filed four prior motions to vacate that sentence and had failed to obtain
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authorization from this court to file his current motion as required by 28 U.S.C.
§ 2244(b)(3)(A). The magistrate judge noted that the savings clause cited in
Wofford does not allow a petitioner to bypass the requirement of obtaining
permission to file a successive motion to vacate. He also noted that Smith’s
successive motion was barred by § 2244’s one-year statute of limitations. Smith
filed objections to the magistrate judge’s report and recommendation. Smith
argued that (1) the savings clause applies to claims involving a fundamental defect
where the petitioner did not have an opportunity to obtain a judicial correction of
the defect earlier and where the petitioner is actually innocent, and (2) his present
action should be considered his first § 2255 motion because none of his previous
motions were denied on the merits.
The district court adopted the magistrate judge’s report and recommendation
over Smith’s objections. The district court found that Smith’s petition should be
construed as a motion to vacate pursuant to § 2255 and conducted a de novo
review of the issues presented by Smith’s objections. Without expressly
discussing Wofford or § 2255’s savings clause, the district court determined that it
lacked jurisdiction because Smith had not been authorized by this court to file a
successive motion, and that Smith’s petition does not fall under any of the
exceptions that render subsequent motions non-successive.
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Smith then filed a motion for rehearing. Smith noted that § 2241 may be
utilized by a federal prisoner to challenge the legality of his sentence if he can meet
the requirements of § 2255’s savings clause, and argued that he can meet those
criteria because Shelton created a new rule of constitutional law that is
retroactively applicable.1 He also argued that the district court erred in determining
that his motion was successive because his previous motions had not been
adjudicated on the merits, and therefore did not need to be authorized by this court.
The district court construed this motion as a Rule 59(e) motion to alter or amend
the judgment and denied it, finding that Smith failed to meet his burden showing
that there was a change in the law, new evidence, a clear legal error, or manifest
injustice.
Smith filed a notice of appeal, which the district court construed as a motion
for a certificate of appealability (“COA”). The district court found that Smith did
not make a substantial showing that he was denied a constitutional right and did
not issue a COA. However, we granted the COA on the limited issue of whether
“the district court erred in dismissing [Smith’s] 28 U.S.C. § 2241 petition as an
impermissible second or successive 28 U.S.C. § 2255 motion and denying
1
In Shelton, the Supreme Court held that “a suspended sentence that may ‘end up in the
actual deprivation of a person’s liberty’ may not be imposed unless the defendant was accorded
‘the guiding hand of counsel’ in the prosecution for the crime charged.” Shelton, 535 U.S. at
658, 122 S. Ct. at 1767.
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[Smith’s] motion for rehearing, construed as a Fed.R.Civ.P. 59(e) motion, without
applying the [] test in Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999).”
II. DISCUSSION
Whether a federal prisoner is eligible for habeas relief under § 2241 presents
a question of law that we review de novo. Darby v. Hawk-Sawyer, 405 F.3d 942,
944 (11th Cir. 2005) (per curiam). Typically, such a prisoner must collaterally
attack the validity of a federal conviction or sentence through a motion under
§ 2255. Id. at 944-45. However, under limited circumstances, a provision of
§ 2255 permits a federal prisoner to file a habeas petition pursuant to § 2241. See
Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir. 2003). That provision, known
as the “savings clause,” provides that:
[a]n application for a writ of habeas corpus in behalf of a prisoner
who is authorized to apply for relief by motion pursuant to this
section, shall not be entertained if it appears that the applicant has
failed to apply for relief, by motion, to the court which sentenced him,
or that such court has denied him relief, unless it also appears that the
remedy by motion is inadequate or ineffective to test the legality of
his detention.
28 U.S.C. § 2255 ¶ 5. Accordingly, a court may entertain a § 2241 petition
attacking custody resulting from a federally imposed sentence if the petitioner
establishes that the remedy provided under § 2255 is inadequate or ineffective. Id.
We have established that the savings clause applies when: (1) the
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petitioner’s claim is based on a retroactively applicable Supreme Court decision;
(2) the holding of that decision establishes that the petitioner was convicted of a
“nonexistent offense”; and (3) “circuit law squarely foreclosed such a claim at the
time it otherwise should have been raised at the petitioner’s trial, appeal, or first
§ 2255 motion.” Wofford, 177 F.3d at 1244. The savings clause only applies if
the petitioner has satisfied all three elements, and we may not reach the merits of a
petitioner’s claim unless he has “open[ed] the portal to a § 2241 proceeding” by
meeting the Wofford test. Id. at 1244 n.3. If we can reach the merits of a claim,
the proper inquiry is whether the petitioner can establish actual innocence to
overcome his procedural default for not raising his claim earlier. Id. “[O]nly
sentencing claims that may conceivably be covered by the savings clause are those
based upon a retroactively applicable Supreme Court decision overturning circuit
precedent.” Id. at 1245. The petitioner bears the burden of coming forward with
evidence affirmatively showing the inadequacy or ineffectiveness of the § 2255
remedy. McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979) (per curiam).
Finally, we may affirm the district court’s judgment on any ground that finds
support in the record. Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004).
In this case, Smith alleges that his federal sentence for conspiracy to possess
cocaine with intent to distribute was enhanced by a state conviction that was
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obtained in violation of his right to counsel under the Sixth Amendment, and of
which he was actually innocent. Smith has filed several previous § 2255 motions
challenging his state conviction. Although the district court erred by not explicitly
analyzing Smith’s petition under the Wofford test, we conclude that Smith has not
made the necessary showing to invoke the savings clause because he has not met
his burden to establish each of the three prongs of the test.
In Howard v. United States, 374 F.3d 1068, 1081 (11th Cir. 2004), we stated
that Shelton recognized a new right which is retroactively applicable on collateral
review, so Smith’s petition meets the first prong of the Wofford test. However,
even if Shelton applies to Smith’s prior state conviction and sentence, he cannot
meet the second prong of the test. Smith correctly acknowledges that his petition
“may not” satisfy the second prong of the Wofford test. (Appellant’s Br. 15).
Shelton does not render non-existent the offense for which Smith was convicted,
possession of marijuana. Instead, Smith merely alleges that his sentence was
unconstitutionally enhanced by that conviction. Consequently, we do not need to
examine whether Smith’s petition meets third prong of the Wofford test. Wofford,
177 F.3d at 1245. Smith’s argument that his case falls within the spirit of Wofford
is unpersuasive, as we have made clear that all three prongs of the test must be
satisfied. Id. at 1244. Because Smith fails to meet the second prong of the
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Wofford test, he is not able to proceed under § 2255’s savings clause, and he
cannot use a § 2241 petition to circumvent the requirements of § 2255. He has not
opened the portal to a § 2241 proceeding, and we cannot consider the merits of his
petition. Id. at 1244 n.3.
Finally, in a proceeding on a motion to vacate, set aside, or correct sentence,
we review the district court’s factual findings for clear error and the legal issues de
novo. Castillo v. United States, 200 F.3d 735, 736 (11th Cir. 2000) (per curiam).
Because the legal issues raised by Smith’s appeal from his Rule 59(e) motion to
alter or amend the judgment are identical those raised by his motion to vacate,
correct, or set aside sentence, Smith likewise has not carried his burden in that
aspect of his appeal. Accordingly, we affirm the district court.
III. CONCLUSION
Freddie Lee Smith appeals the district court’s dismissal of his 28 U.S.C.
§ 2241 petition, which was construed as a motion to vacate, correct, or set aside a
sentence under 28 U.S.C. § 2255, as impermissibly successive, and the denial of
his motion for rehearing, which the district court construed as a motion under Rule
59(e) to alter or amend the judgment. On appeal, Smith argues that he is entitled to
file a § 2241 petition through § 2255’s savings clause because Shelton provides a
new rule of constitutional law that is retroactively applicable, and his case is within
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the spirit of Wofford. The district court correctly dismissed Smith’s petition
because it clearly fails the second prong of the Wofford test.
AFFIRMED.
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