[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 14, 2003
No. 01-16398 THOMAS K. KAHN
CLERK
D. C. Docket No. 00-00292 CV-OC-10
JAMES SAWYER,
Petitioner-Appellant,
versus
CARLYLE HOLDER, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Middle District of Florida
(April 14, 2003)
Before DUBINA, RONEY and COX, Circuit Judges.
DUBINA, Circuit Judge:
In this appeal, we consider whether petitioner James Sawyer’s (“Sawyer”)
Richardson1 claim falls within the purview of 28 U.S.C. § 2255's savings clause.
Because we hold that Sawyer was not convicted of a nonexistent offense, and thus,
did not meet the second prong of the Wofford2 test, his Richardson claim does not
fall within the purview of the savings clause. Accordingly, we affirm the district
court’s dismissal of Sawyer’s 28 U.S.C. § 2241 petition.
I. BACKGROUND
On December 21, 1987, a federal jury in the Southern District of Florida
found Sawyer guilty of several controlled substances offenses, in violation of 21
U.S.C. §§ 841 and 846 and 18 U.S.C. § 2 (Counts Four, Five, Fourteen, Eighteen,
and Twenty-four) and engaging in a continuing criminal enterprise (“CCE”), in
violation of 21 U.S.C. § 848 (Count Two). The district court sentenced Sawyer to
a total of fifty-six years imprisonment and six years special parole, to be followed
by five years supervised release. On direct appeal, this court affirmed Sawyer’s
convictions and sentences. United States v. Smith, 918 F.2d 1501, 1516 (11th Cir.
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Richardson v. United States, 526 U.S. 813, 119 S. Ct. 1707, 143 L. Ed. 2d 985 (1999).
2
Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999).
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1990). Sawyer then filed a 28 U.S.C. § 2255 petition challenging his convictions,
which the district court denied.
Thereafter, the United States Supreme Court decided Richardson, which
held that, with respect to a CCE charge under 21 U.S.C. § 848, a jury must agree
unanimously on which specific predicate violations established the continuing
series of violations prohibited by the statute. 526 U.S. at 815, 119 S. Ct. at 1709.
Sawyer requested from this court an order authorizing the district court to consider
a successive § 2255 motion raising a Richardson claim. We denied that request.
In September of 2000, Sawyer filed a motion pursuant to 28 U.S.C. § 2241
seeking relief under Richardson. The district court applied the Wofford test and
determined that Sawyer had failed to make the showing required to invoke the
savings clause of § 2255. The district court further found that even if Sawyer’s
claim fell within the purview of the savings clause, he would still be unable to
demonstrate the cause and prejudice or actual innocence necessary to excuse his
procedural default. Sawyer timely appealed.3
3
As a preliminary matter, Sawyer may proceed before this court despite the lack of a
certificate of appealability (“COA”). Based on the statutory language of 28 U.S.C. § 2253(c)(1),
state prisoners proceeding under § 2241 must obtain a COA to appeal. In contrast, § 2253(c)(1)(B)
explicitly requires a federal prisoner to obtain a COA only when proceeding under § 2255. By
negative implication, a federal prisoner who proceeds under § 2241 does not need a COA to proceed.
See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir.) (allowing petitioner to proceed under 2241
without a COA), cert. denied, 534 U.S. 1001, 122 S. Ct. 476, 151 L. Ed. 2d 390 (2001).
3
II. ISSUE
Whether the district court properly dismissed Sawyer’s 28 U.S.C. § 2241
petition, finding that Sawyer had failed to make the requisite showing to invoke
the savings clause of 28 U.S.C. § 2255.4
III. DISCUSSION
Typically, a petitioner collaterally attacks the validity of his federal sentence
by filing a petition under 28 U.S.C. § 2255. United States v. Jordan, 915 F.2d
622, 629 (11th Cir. 1990). Under the savings clause of § 2255, a prisoner may file
a § 2241 petition if an otherwise available remedy under § 2255 is inadequate or
ineffective to test the legality of his detention. The savings clause provides as
follows:
An 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.
4
The availability of habeas relief under § 2241 presents a question of law that this court
reviews de novo. See Cook v. Wiley, 208 F.3d 1314, 1317 (11th Cir. 2000).
4
28 U.S.C. § 2255. This court has interpreted this provision to mean that the
savings clause applies 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. Wofford, 177 F.3d at 1244.
Neither the first nor third prong of Wofford is at issue in this case. In Ross
v. United States, 289 F.3d 677, 681 (11th Cir. 2002), cert. denied, 123 S. Ct. 944,
154 L. Ed. 2d 787 (2003), we acknowledged that Richardson is retroactive.
Additionally, as to the third prong, this circuit’s decisions had foreclosed a
Richardson claim at the time Sawyer filed his direct appeal and first § 2255
motion. See United States v. Lehder-Rivas, 955 F.2d 1510, 1519 n.6 (11th Cir.
1992); United States v. Alvarez-Moreno, 874 F.2d 1402, 1412 (11th Cir. 1989);
United States v. Rosenthal, 793 F.2d 1214, 1226-27 (11th Cir. 1986).
The crux of this case concerns the second prong of the Wofford test:
whether Sawyer was convicted for a nonexistent offense. Sawyer contends that
Richardson changed the elements of a CCE offense, and that the court did not
properly instruct the jury in accord with Richardson. Sawyer argues that pre-
Richardson, a jury was required to find that the accused committed a series of
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offenses, but the jury was not required to agree on what specific predicate offenses
comprised this series. Post-Richardson, if jurors cannot agree on what specific
offenses make up the continuing series, the jury may not convict the accused of the
CCE offense. Thus, Sawyer posits that by changing the elements of the CCE
offense, the Richardson Court established that petitioners, like Sawyer, who have
been convicted of a CCE offense under the pre-Richardson interpretation of the
statute are convicted of an act that the law does not make criminal.
We are not persuaded by Sawyer’s arguments and find instructive the Fifth
Circuit case of Jeffers. In Jeffers, the petitioner filed a § 2241 petition, relying on
Richardson and arguing that his CCE conviction resulted from constitutionally
deficient jury instructions. 253 F.3d at 829. Petitioner Jeffers was unable to raise
the claim in either his direct appeal or his first § 2255 motion because circuit law
foreclosed it. The Fifth Circuit considered a test similar to our Wofford test, but
which combined the first two prongs of Wofford. Id. at 830. With regard to the
nonexistent offense portion, the court stated that the petitioner must show that he
was imprisoned for conduct that was not prohibited; i.e., he must show that he is
actually innocent. Id. at 830-31. The court concluded that petitioner could not
show that he was convicted for conduct that did not constitute a crime.
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In sum, although the lack of an instruction requiring a unanimous jury
verdict as to each of the predicate offenses underlying the CCE
violation may have been a defect in Jeffers’s trial, it is not the sort of
defect that can support a claim under the savings clause of § 2255.
Id. at 831.
As the Jeffers court concluded, a Richardson claim is not the type of defect
that opens the portal to a § 2241 proceeding. The conduct necessary to show a
CCE offense is the same post-Richardson. Richardson clarified the standard by
which a jury must find a defendant guilty of a CCE offense, but it did not
invalidate CCE offenses. As such, Sawyer was not convicted of a nonexistent
offense. Thus, we conclude Richardson has no effect on Sawyer’s CCE
conviction.
Moreover, Sawyer’s argument is aimed more specifically at the court’s
failure to instruct the jury in accord with Richardson. Although the instruction did
not mirror Richardson and inform the jury that it must unanimously agree on
which specific predicate acts established the continuing series of violations, it did
state that the drug violations had to be a part of a continuing series of violations.
(R. Vol.1, Tab 5). The instruction further provided that “a continuing series of
violations requires a finding that those violations were connected together as a
series of related or ongoing activities as distinguished from isolated and
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disconnected acts.” Id. The fact that the jury found Sawyer guilty of these five
substantive drug offenses “necessarily establishes that the jurors agreed
unanimously that he was guilty of those offenses.” Murr v. United States, 200
F.3d 895, 906 (6th Cir. 2000). In conclusion, the jury’s unanimous finding of guilt
on the five substantive drug offenses ensures that the core concern of the
Richardson decision – that jurors might convict on the basis of violations for
which there was non-unanimity – is not present in this case. See United States v.
Escobar-de Jesus, 187 F.3d 148, 161-62 (1st Cir. 1999).
Even if we concluded, however, that Sawyer had made the necessary
showing to invoke the savings clause, he would still need to demonstrate cause
and prejudice or actual innocence to be entitled to habeas relief. Bousley v. United
States, 523 U.S. 614, 622, 118 S. Ct. 1604, 1611, 140 L. Ed. 2d 828 (1998).
Sawyer argues that he can show cause because at the time of his direct appeal and
first habeas petition, circuit precedent foreclosed his claim under Richardson.
However, the Supreme Court rejected such an argument in Bousley. 523 U.S. at
623, 118 S. Ct. at 1611 (stating that “futility cannot constitute cause if it means
simply that a claim was ‘unacceptable to that particular court at that particular
time’”) (quoting Engle v. Isaac, 456 U.S. 107, 130 n.35, 102 S. Ct. 1558, 1573
n.35, 71 L. Ed. 2d 783 (1982)).
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Sawyer also fails to establish actual innocence. “To establish actual
innocence, [Sawyer] must demonstrate that, in light of all the evidence, it is more
likely than not that no reasonable juror would have convicted him.” Bousley, 523
U.S. at 623, 118 S. Ct. at 1611 (internal citations and quotations omitted). The
Court defined “actual innocence” as “factual innocence, not mere legal
insufficiency.” Id. As noted supra, Sawyer’s jury convicted him of five
substantive drug offenses in addition to the CCE offense. This finding is
tantamount to the jury having found that Sawyer committed each of these offenses
as part of the CCE. Sawyer’s claim is one of legal innocence, not factual
innocence. Even if his claim were a claim of factual innocence, Sawyer could not
meet his burden. See Hernandez-Escarsega v. Morris, 43 Fed. Appx. 181 (10th
Cir. 2002) (finding petitioner’s Richardson claim to be one of legal innocence, not
factual innocence, and thus, not proper for relief under § 2241), cert. denied, 123
S. Ct. 159, 154 L. Ed. 2d 156 (2002); Whitener v. Snyder, 23 Fed. Appx. 257 (6th
Cir. 2001) (same).
For the foregoing reasons, we conclude the district court properly dismissed
Sawyer’s § 2241 petition because he could not demonstrate that § 2255 was
inadequate or ineffective to test the legality of his conviction and he failed to
establish cause and prejudice or actual innocence to excuse his procedural default.
AFFIRMED.
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