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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13211
Non-Argument Calendar
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D.C. Docket No. 2:12-cv-00044-LGW-JEG
JULIO RAMOS,
Petitioner-Appellant,
versus
WARDEN, FCI JESUP
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Georgia
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(December 26, 2012)
Before TJOFLAT, MARCUS and MARTIN, Circuit Judges.
PER CURIAM:
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Julio Ramos appeals the decision of the district court, which construed his
habeas corpus petition filed pursuant to 28 U.S.C. § 2241 as a motion to vacate under
28 U.S.C. § 2255, and dismissed the motion as second or successive. After having
his initial § 2255 motion denied, Ramos filed the § 2241 petition at issue, in which
he alleged that the government’s prosecution of him for a drug-trafficking conspiracy
had violated a treaty between the United States and the Dominican Republic, Ramos’s
home country. On appeal, he argues that § 2241 was the proper procedural vehicle
for his claim because § 2241 provided the exclusive remedy for violations of a treaty,
and that the district court should not have construed it as a § 2255 motion and
dismissed it as second or successive. After thorough review, we affirm.
“When reviewing the district court’s denial of a § 2255 motion, we review
findings of fact for clear error and questions of law de novo.” Rhode v. United
States, 583 F.3d 1289, 1290 (11th Cir. 2009). We review de novo a district court’s
dismissal of a § 2255 motion as second or successive. McIver v. United States, 307
F.3d 1327, 1329 (11th Cir. 2002). Although we generally construe pro se pleadings
liberally, the party abandons any issues not raised on appeal. Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008).
A federal prisoner may file a § 2255 motion “upon the ground that the sentence
was imposed in violation of the Constitution or laws of the United States, or that the
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court was without jurisdiction to impose such sentence, or that the sentence was in
excess of the maximum authorized by law, or is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a). Section 2241 of Title 28 provides that the writ of
habeas corpus extends to a prisoner who is in custody “in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). This
language is mirrored in 28 U.S.C. § 2254(a), which provides for habeas relief for state
prisoners. 28 U.S.C. § 2254(a).
Any challenge to the execution of a sentence, rather than the validity of the
sentence itself, should be brought under § 2241, not § 2255. Antonelli v. Warden,
U.S.P. Atlanta, 542 F.3d 1348, 1352 (11th Cir. 2008). Although the language of §
2255 does not provide for challenges based on alleged treaty violations, the Supreme
Court has held that “there can be no doubt that the grounds for relief under § 2255 are
equivalent to those encompassed by § 2254, the general federal habeas corpus
statute,” which provides for relief when a person is in custody in violation of, inter
alia, the treaties of the United States. Davis v. United States, 417 U.S. 333, 344
(1974). We also have noted that the grounds for relief for non-constitutional
violations under § 2254, which includes treaty violations, are equivalent to those
encompassed by § 2255. Adams v. Lankford, 788 F.2d 1493, 1495 n.4 (11th Cir.
1986) (citing Davis, 417 U.S. at 344).
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The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.
L. No. 104-132, 110 Stat. 1214 (1996), requires that, before a second or successive
motion is filed, the movant first must obtain an order from the court of appeals
authorizing the district court to consider it. 28 U.S.C. §§ 2244(b)(3)(A), 2255(h).
Without this authorization, the district court lacks jurisdiction to consider a second
or successive § 2255 motion. Farris v. United States, 333 F.3d 1211, 1216 (11th Cir.
2003). We will generally look beyond the label of motions filed by pro se inmates
to interpret them under whatever statute would provide relief. Means v. Alabama,
209 F.3d 1241, 1242 (11th Cir. 2000).
Under § 2255(e), a federal prisoner who is otherwise barred from filing a
second or successive motion to vacate may challenge his custody in a § 2241 petition
if it “appears that the remedy by motion is inadequate or ineffective to test the legality
of his detention.” 28 U.S.C. § 2255(e). Although we have not fully defined the scope
of the § 2255(e) savings clause, we have noted that the savings clause may permit
claims under § 2241 that a prisoner was convicted of a nonexistent crime based on
a retroactively applicable Supreme Court decision. Wofford v. Scott, 177 F.3d 1236,
1244 (11th Cir. 1999). However, in an en banc decision, we noted that this statement
was “only dicta” because all of Wofford’s claims were sentencing claims that could
have been presented at trial or on appeal. Gilbert v. United States, 640 F.3d 1293,
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1319 (11th Cir. 2011) (en banc), cert. denied, 132 S.Ct. 1001 (2012). Regardless, a
§ 2241 habeas petition may not be used to avoid the restrictions on second or
successive § 2255 motions when a prisoner failed to raise the claim at an earlier stage.
Wofford, 177 F.3d at 1245.
Here, the district court did not err by construing Ramos’s filing as a § 2255
motion and dismissing it as second or successive. Ramos filed an unsuccessful §
2255 motion prior to filing the § 2241 petition at issue here. Although captioned as
a § 2241 petition, Ramos seeks to challenge the validity of his convictions and
sentences, not the execution of his sentences, and, therefore, the motion is properly
characterized as a § 2255 motion. See Antonelli, 542 F.3d at 1352. We recognize
that the language of § 2255 does not provide expressly for challenges to convictions
and sentences based on alleged treaty violations; however, the Supreme Court has
concluded that the grounds for relief under § 2255 mirror those available under §
2254, which permits challenges based on treaty violations. See Davis, 417 U.S. at
344. Therefore, Ramos’s statutory interpretation argument is without merit.
Further, Ramos’s reliance on Darby and Noriega is misplaced. In Darby v.
Hawk-Sawyer, 405 F.3d 942 (11th Cir. 2005), we declined to decide whether § 2241
provided the exclusive remedy for alleged treaty violations. See id. at 946.
Therefore, Darby does not help Ramos’s argument. Ramos also cannot rely on
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Noriega v. Pastrana, 564 F.3d 1290 (11th Cir. 2009), because Noriega was not
challenging the validity of his conviction or sentence, so § 2255 would have been an
inappropriate procedural vehicle to obtain the relief sought. See id. at 1293-94. In
contrast, as discussed above, § 2255 is the appropriate procedural vehicle for Ramos’s
claims because Ramos is challenging his conviction and sentence. Accordingly, we
affirm.1
AFFIRMED.
1
In addition, Ramos has abandoned any argument that he was entitled to file a § 2241
petition under the savings clause in § 2255(e) and Wofford because he did not raise that issue on
appeal. See Timson, 418 F.3d at 874.
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MARTIN, Circuit Judge, concurring:
I agree with the majority’s conclusion that the district court did not err in
construing Mr. Ramos’s § 2241 petition as a § 2255 motion and dismissing it as
second or successive. I write separately only to emphasize, as the majority
recognizes, that “we have not fully defined the scope” of the savings clause in 28
U.S.C. § 2255(e). I can conceive of circumstances in which § 2241 is appropriate
to address a federal prisoner’s treaty violation claim. See, e.g., Garza v. Lappin, 253
F.3d 918, 921–23 (7th Cir. 2001) (recognizing that § 2255 was inadequate remedy
within the meaning of the savings clause, thus ban on successive § 2255 motions did
not preclude federal prisoner from filing § 2241 petition raising treaty claim that was
not available until after first § 2255 motion was denied). However, Mr. Ramos’s is
not one of those cases. He has not demonstrated that his treaty based claim was
unavailable at the time he could have raised it at trial, appeal, or in his first § 2255
motion.
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