[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 21, 2012
No. 11-14058
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 9:95-cr-08021-JAL-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
THOMAS RANDOLF GLOVER,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 21, 2012)
Before CARNES, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
Thomas Glover filed a motion under 18 U.S.C. § 3582(c)(2) to reduce his
360-month prison sentence for dealing crack cocaine. He eventually conceded
that he was ineligible for relief under § 3582(c)(2) but filed a motion requesting
that the district court construe his § 3582(c)(2) motion as a 28 U.S.C. § 2241
habeas corpus petition. The district court denied that motion, and Glover appeals,
arguing that his § 3582(c)(2) motion “made it clear that [he] was challenging the
fact that he was guilty of being a career offender.”
I.
A jury found Glover guilty of three counts of dealing crack cocaine in
violation of 21 U.S.C. §§ 841(a)(1), 846. Based on Glover’s 1984 Florida
conviction for aggravated battery and his 1992 Florida conviction for selling crack
cocaine, the presentence investigation report determined that he was a career
offender under the sentencing guidelines. As such, and because he was subject to
a maximum life sentence for each of his current convictions, the PSR
recommended a total offense level of 37. Combined with Glover’s criminal
history category of VI, his applicable guidelines range was 360 months to life.
Glover did not object to his career offender status, and the district court sentenced
him to 360 months imprisonment on each count, with all to run concurrently. We
affirmed Glover’s conviction on direct appeal. United States v. Glover, No. 97-
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4982 (11th Cir. July 6, 1998).
Over the course of the next six years, Glover filed three 28 U.S.C. § 2255
motions to vacate, set aside, or correct his sentence. He did not challenge the
district court’s finding that he was a career offender under the guidelines in any of
those motions, and the court dismissed each one.
In February 2010, Glover filed a pro se motion requesting a reduction of his
prison sentence under 18 U.S.C. § 3582(c)(2) based on retroactive guidelines
amendments concerning crack cocaine. He attached the following handwritten
note to his motion: “I am request for a attorney because my 198[4] aggravated
battery is not crimes of violence.” After the court appointed counsel, Glover
conceded that he was not entitled to relief under § 3582(c)(2) because his
guidelines range was based on his status as a career offender and not on the
amount of drugs distributed in his drug deals. See United States v. Moore, 541
F.3d 1323, 1330 (11th Cir. 2008).
Glover then filed a motion requesting that the district court construe his §
3582(c)(2) motion as a 28 U.S.C. § 2241 habeas corpus petition so that he could
challenge the district court’s finding that he was a career offender under the
guidelines. The career offender enhancement requires that “the defendant has at
least two prior felony convictions of either a crime of violence or a controlled
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substance offense.” United States Sentencing Guidelines § 4B1.1(a) (Nov. 1996).
He argued that he was not a career offender because his 1984 Florida conviction
for aggravated battery was not a crime of violence. The court denied his motion,
and this appeal followed.
II.
We review de novo the availability of habeas relief under 28 U.S.C. § 2241.
Dohrmann v. United States, 442 F.3d 1279, 1280 (11th Cir. 2006). “Typically,
collateral attacks on the validity of a federal sentence must be brought under [28
U.S.C.] § 2255.” Darby v. Hawk-Sawyer, 405 F.3d 942, 944 (11th Cir. 2005) (per
curiam). “When a prisoner has previously filed a § 2255 motion . . . , he must
apply for and receive permission from us before filing a successive § 2255
motion.” Id. at 945; see 28 U.S.C. § 2255(h). But § 2255 permits a federal
prisoner to file a 28 U.S.C. § 2241 habeas corpus petition if an otherwise available
remedy under § 2255 is “inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255(e). “[C]onsequently, a petitioner who has filed and
been denied a previous § 2255 motion may not circumvent the successive motion
restrictions simply by filing a petition under § 2241.” Darby, 405 F.3d at 945.
The district court did not err in refusing to construe the § 3582(c)(2) motion
as a § 2241 habeas corpus petition because Glover was not entitled to file such a
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petition. As he concedes, our decision in Gilbert v. United States, 640 F.3d 1293
(11th Cir. 2011) (en banc), forecloses his claim. In Gilbert, we held that § 2255(e)
does not permit a “federal prisoner to challenge his sentence in a 28 U.S.C. § 2241
[habeas corpus] petition when he cannot raise that challenge in a § 2255 motion
because of the § 2255(h) bar against second and successive motions.” Glover
could not challenge his sentence based on his career offender status in a § 2255
motion because we have not granted him permission to file what would be his
fourth § 2255 motion. He thus cannot raise that same challenge in a § 2241
habeas corpus petition.
Glover also argues that the district court erred because it denied his motion
for an evidentiary hearing to determine whether his aggravated battery conviction
was a crime of violence. Because Glover was not entitled to file a § 2241 habeas
corpus petition challenging his sentence, the district court did not abuse its
discretion in denying the motion to hold an evidentiary hearing.
AFFIRMED.
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