Ian Orville Aiken v. Warden, FCC Coleman - Medium, No. 12-13514 (11th Cir. 2014)

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Case: 12-13514 Date Filed: 12/29/2014 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 12-13514 Non-Argument Calendar ________________________ D.C. Docket No. 5:09-cv-00387-EAK-TBS IAN ORVILLE AIKEN, Petitioner-Appellant, versus WARDEN, FCC COLEMAN - MEDIUM, Respondent-Appellee. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (December 29, 2014) Before WILSON, ROSENBAUM and KRAVITCH, Circuit Judges. PER CURIAM: Case: 12-13514 Date Filed: 12/29/2014 Page: 2 of 9 Ian Orville Aiken, a federal prisoner proceeding pro se, appeals the district court’s dismissal of his petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, in which he alleged that his sentence for possession of ammunition by a convicted felon was improperly enhanced pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). After a thorough review, we affirm. I. In 2000, Aiken was convicted and sentenced for possession of ammunition as a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and possession and use of a false non-immigrant visa and/or passport, in violation of 18 U.S.C. § 1546(a). Because he had three prior violent felony convictions, 1 he was subject to the sentence enhancement provision of the ACCA, which mandated a minimum 15year prison term. At sentencing, Aiken initially objected to the application of the ACCA enhancement and to the factual descriptions in the presentence investigation report (PSI) concerning the conduct underlying his prior state convictions. But Aiken later withdrew his objections after the government agreed to modify the contested sections of the PSI. The district court applied the ACCA enhancement without discussing the specific convictions that served as predicate offenses. The court then sentenced Aiken to 293 months’ imprisonment for the 1 The criminal history that formed the basis of Aiken’s ACCA enhancement included: (1) 1989 convictions for carrying a concealed firearm, battery on a law enforcement officer, and resisting an officer with violence to his person; (2) a 1990 conviction for aggravated battery; and (3) 1993 convictions for robbery and false imprisonment. 2 Case: 12-13514 Date Filed: 12/29/2014 Page: 3 of 9 felon-in-possession conviction and a concurrent 120-month term for the falsedocument conviction.2 Aiken’s convictions and total sentence were summarily affirmed by this court on appeal. United States v. Aiken, 254 F.3d 74 (11th Cir. 2001) (table). In 2002, Aiken sought relief pursuant to 28 U.S.C. § 2255, arguing that the police lacked probable cause to arrest him, he was actually innocent of the charged violation of § 1546(a), and he was deprived of jail-time credit from a related offense. The district court denied Aiken’s motion in 2003 and we declined to issue a certificate of appealability in June 2004. Aiken filed his instant § 2241 petition in September 2009, arguing that he was actually innocent of the ACCA enhancement because his prior state convictions did not qualify as “violent felonies.” The district court dismissed Aiken’s § 2241 petition for lack of jurisdiction, concluding that Aiken had failed to establish the necessary conditions to satisfy the savings clause of 28 U.S.C. § 2255(e), so that his claims might be considered in a § 2241 petition. Alternatively, the court noted that Aiken’s claim would fail on the merits because he possessed the requisite number of predicate convictions to support the ACCA enhancement. In his instant appeal, Aiken characterizes the Supreme Court’s decisions in Begay v. United States, 553 U.S. 137 (2008), Chambers v. United States, 555 U.S. 2 Aiken also is serving a 420-month sentence for conspiracy to engage in racketeering, in violation of 18 U.S.C. § 1962(d), to run concurrently to his other two sentences. 3 Case: 12-13514 Date Filed: 12/29/2014 Page: 4 of 9 122 (2009), and Johnson v. United States, 559 U.S. 133 (2010), as retroactive decisions sufficient to trigger the savings clause of § 2255(e) and allow his § 2241 petition to be decided on the merits. Relying on these decisions, he argues that the district court erred in finding that his prior state convictions for battery on a law enforcement officer, robbery, and false imprisonment, were violent felonies for purposes of the ACCA. As a result, he maintains, he is “[a]ctually, [f]actually, and [l]egally” innocent of his status as an armed career criminal. 3 II. We construe pro se pleadings liberally. See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). “Whether a prisoner may bring a [] § 2241 petition under the savings clause of § 2255(e) is a question of law we review de novo.” Williams v. Warden, Fed. Bureau of Prisons, 713 F.3d 1332, 1337 (11th Cir. 2013), petition for cert. filed, (U.S. April 8, 2014). Under § 2241(a) and (d), a district court has the power to grant a writ of habeas corpus to a prisoner in custody in that district. This power is limited, however, by § 2255(e), which states: An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by [a § 2255 motion], 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. 3 Following briefing, Aiken’s appeal was held in abeyance pending our ruling in Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253 (11th Cir. 2013). 4 Case: 12-13514 Date Filed: 12/29/2014 Page: 5 of 9 28 U.S.C. § 2255(e). The applicability of § 2255(e)’s savings clause is a threshold jurisdictional issue, which imposes a subject-matter jurisdictional limit on § 2241 petitions. See Williams, 713 F.3d at 1337-38. Accordingly, before we may reach the substantive claims raised by Aiken, we must determine whether the savings clause of § 2255(e) permits him to seek relief through a § 2241 petition. The restriction against second and successive § 2255 motions, standing alone, cannot render § 2255’s remedy inadequate or ineffective under the savings clause in § 2255(e). Gilbert v. United States, 640 F.3d 1293, 1308 (11th Cir. 2011) (en banc). Rather, we have explained that a petitioner can use the savings clause to “open the portal” to § 2241 only where he shows that: (1) throughout his sentencing, direct appeal, and original § 2255 proceeding, his claim was squarely foreclosed by our binding precedent; (2) his current claim is based on a Supreme Court decision that overturned the precedent that had foreclosed his claim; (3) that Supreme Court decision is retroactively applicable on collateral review; (4) as a result of the application of the new rule, his sentences exceed the applicable statutory maximum penalties; and (5) the savings clause reaches his pure-Begay error claim of illegal detention above the statutory maximum penalty. Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253, 1262, 1274 (11th Cir. 2013). 5 Case: 12-13514 Date Filed: 12/29/2014 Page: 6 of 9 III. In this case, Aiken fails to show that he can meet the requirements in Bryant. First, he cannot show that this Circuit’s law foreclosed him from raising an objection to the treatment of his convictions as violent felonies under the ACCA during his direct appeal or initial § 2255 motion. No Eleventh Circuit precedent squarely held that battery on a law enforcement officer, as defined in Fla. Stat. §§ 784.03, 784.07, was a violent felony for ACCA purposes during Aiken’s direct appeal and initial § 2255 proceedings. It was not until December 2005, in our decision in United States v. Glover, 431 F.3d 744, 749 (11th Cir. 2005), that we held that a conviction under §§ 784.03 and 784.07 constituted a crime of violence under the elements clause of the career-offender guideline enhancement found at U.S.S.G. § 4B1.1. See Gilbert, 640 F.3d at 1309 n.16 (noting that this court uses the same analysis for determining whether a crime constitutes a “violent felony” for the purposes of the ACCA enhancement as it does for a “crime of violence” as defined under the § 4B1.1 career-offender provision). Aiken’s reliance on our decision in United States v. Llanos-Agostadero, 486 F.3d 1194, 1196-98 (11th Cir. 2007) also is unavailing, as it was decided in 2007, and its holding that Florida battery on a pregnant woman constituted a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii) is inapplicable here. See United States v. Contreras, 739 F.3d 592, 598 (11th Cir. 2014) (noting that § 2L1.2 6 Case: 12-13514 Date Filed: 12/29/2014 Page: 7 of 9 “defines ‘crime of violence’ very differently” than the ACCA defines “violent felony,” such that cases interpreting the ACCA were “not applicable” in that context). Aiken also fails to identify circuit precedent at the time of his direct appeal and first § 2255 motion that squarely foreclosed his claim that his 1990 convictions for robbery and false imprisonment did not qualify as predicate offenses under the ACCA. 4 That said, with regard to Aiken’s robbery conviction, prior to the conclusion of his § 2255 proceedings in June 2004, our caselaw treated Florida robbery as a violent felony under the ACCA. See United States v. Wilkerson, 286 F.3d 1324, 1325 (11th Cir. 2002) (holding that “robbery clearly constitutes a ‘violent felony’ within the meaning of § 924(e)(2)(B)”). In any event, Aiken fails to demonstrate that Wilkerson has been overturned by a retroactively applicable Supreme Court decision. See Bryant, 738 F.3d at 1274. Aiken’s reliance on Begay, Chambers, and Johnson, to argue that his robbery conviction did not qualify as a violent felony is misplaced. First, although Begay instructed courts to apply the “purposeful, violent, and aggressive” test to determine whether a given state offense qualifies as a violent felony, it did not 4 Because Aiken’s 1990 false-imprisonment conviction arose out of the same incident as his robbery conviction, only one of the two convictions could have served as a predicate ACCA offense. See United States v. Canty, 570 F.3d 1251, 1255 (11th Cir. 2009) (explaining that “[i]n order for ACCA enhancement to be proper, the defendant must have been convicted of three violent felonies or serious drug crimes ‘committed on occasions different from one another.’”) (citation omitted). Here, as Aiken failed to demonstrate that his robbery conviction no longer qualifies as a violent felony, we have no need to address his false-imprisonment conviction. 7 Case: 12-13514 Date Filed: 12/29/2014 Page: 8 of 9 abrogate all of this court’s prior violent felony jurisprudence. Begay, 553 U.S. at 144-45; Williams, 713 F.3d at 1347. Notably, subsequent to Begay, we reaffirmed that Florida’s robbery statute, Fla. Stat. § 812.13(1), categorically qualifies as a crime of violence for the purposes of the analogous career-offender enhancement. See United States v. Lockley, 632 F.3d 1238, 1242-45 (11th Cir. 2011); Gilbert, 640 F.3d at 1309 n.16. Second, the Supreme Court’s holding in Chambers—that Illinois’s offense of failure to report to a penal institution was not an ACCA violent felony—did not affect Wilkerson’s treatment of Florida robbery as an ACCA violent felony. See Chambers, 555 U.S. at 123, 127-30. Third, Johnson, which held that one subdivision of Florida’s battery statute did not qualify as a violent felony, also did not affect Wilkerson’s discussion of a robbery offense. See Johnson, 559 U.S. at 136-37, 140-41, 145. To the extent that Aiken argues that his counsel was ineffective for withdrawing his objections to the application of the ACCA enhancement at sentencing, we need not address this issue because Aiken failed to present it to the district court. See Walker v. Jones, 10 F.3d 1569, 1572-73 (11th Cir. 1994) (noting that this court will not consider a habeas claim that was not raised before the district court). In sum, we conclude that Aiken has failed to establish on appeal that binding circuit precedent “squarely foreclosed” him from raising his claim on direct appeal 8 Case: 12-13514 Date Filed: 12/29/2014 Page: 9 of 9 or in his previous § 2255 motion, or that a retroactively applicable Supreme Court decision overturned the relevant precedent. Bryant, 738 F.3d at 1274. Accordingly, Aiken has not satisfied the § 2255(e) savings clause requirements and we affirm the district court’s dismissal of his § 2241 habeas corpus petition. 5 AFFIRMED. 5 Following briefing, Aiken moved to remand the case in full, pursuant to Fed. R. App. P. 28(j), arguing that the Supreme Court’s decision in Descamps v. United States, 570 U.S. ___, 133 S.Ct. 2276 (2013), established that the district court improperly referred to the facts underlying his prior convictions in determining that they qualified as ACCA violent felonies. Because Descamps has no bearing on whether Aiken can satisfy the test we set forth in Bryant, his motion to remand the case in full is DENIED. 9

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