Rayford Stevems v. Warden, No. 13-14686 (11th Cir. 2014)

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Case: 13-14686 Date Filed: 07/16/2014 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 13-14686 Non-Argument Calendar ________________________ D.C. Docket No. 2:12-cv-00188-LGW-JEG RAYFORD STEVENS, Petitioner-Appellant, versus WARDEN, Respondent-Appellee. ___________________________ Appeal from the United States District Court for the Southern District of Georgia ____________________________ (July 16, 2014) Before MARTIN, JORDAN, and ANDERSON, Circuit Judges. PER CURIAM: Proceeding pro se, Rayford Stevens, a federal inmate serving a life sentence, appeals the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. Case: 13-14686 Date Filed: 07/16/2014 Page: 2 of 9 § 2241. The district court concluded that Mr. Stevens petition had failed to satisfy the savings clause requirements of 28 U.S.C. § 2255(e). Following a review of the record and the parties briefs, we affirm. I On April 21, 1994, following a jury trial in the Southern District of Alabama, Mr. Stevens was convicted of three offenses: conspiracy to commit armed robbery of a motor vehicle, in violation of 18 U.S.C. §§ 371 and 2 (Count 1); armed robbery of a motor vehicle ( carjacking ), in violation of 18 U.S.C. § 2119 (Count 2); 1 and use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c) (Count 3). See AL D.E. 1. 2 1 At the time of Mr. Stevens offense and conviction, 18 U.S.C. § 2119 provided: Whoever, with the intent to cause death or serious bodily harm, takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall (1) be fined under this title or imprisoned not more than 15 years, or both, (2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and (3) if death results, be fined under this title or imprisoned for any number of years up to life, or both, or sentenced to death. 18 U.S.C. § 2119 (1988). 2 Although Mr. Stevens was convicted and sentenced in Alabama, he is currently incarcerated at the Federal Correctional Institution in Jesup, Georgia, and, therefore, filed his present petition in the Southern District of Georgia. For the sake of clarity, we refer to court documents related to 2 Case: 13-14686 Date Filed: 07/16/2014 Page: 3 of 9 Upon its own finding at sentencing that a death resulted from the carjacking, the district court sentenced Mr. Stevens to life imprisonment without parole for Count 2, to be served concurrently with 60-month sentences for Counts 1 and 3. Mr. Stevens appealed, and this Court affirmed his convictions and sentences. See United States v. Knight, 70 F.3d 1285 (11th Cir. 1995) (table). In 1997, Mr. Stevens filed a motion to vacate pursuant to 18 U.S.C. § 2255, arguing (1) that the government failed to prove two essential elements to support his convictions on Counts 1 and 2; (2) that he was denied effective assistance of counsel; and (3) that newly discovered evidence would likely have resulted in his acquittal. See AL D.E. 139. The district court denied his petition in accordance with Rule 8(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts. See AL D.E. 150. Mr. Stevens was denied a certificate of appealability, first by the district court and then by this Court. See AL D.E. 152; GA D.E. 8-2. See also Stevens v. United States, 49 Fed. App x 288 (11th Cir. 2002) (table) (affirming denial of motion to reconsider). 3 his proceedings in Alabama, i.e., trial, sentencing, and his initial § 2255 petition, as AL D.E., and those filed in his present petition in Georgia as GA D.E. 3 Mr. Stevens claims in his present § 2241 petition that he was improperly sentenced on Count 2 because the elements of the carjacking charge were not stated in his indictment. But his earlier § 2255 motion contradicts that assertion. In his § 2255 motion, Mr. Stevens stated that [t]he Indictment charged that [co-defendant] Knight and Stevens conspired to take a motor vehicle by 3 Case: 13-14686 Date Filed: 07/16/2014 Page: 4 of 9 After the denial of Mr. Stevens § 2255 motion, the Supreme Court decided Jones v. United States, 526 U.S. 227 (1999). Jones held that 18 U.S.C. § 2119 establish[ed] three separate offenses by the specification of distinct elements, each of which must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict. 526 U.S. at 252. The following year, as foreshadowed by Jones, the Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466 (2000), that any facts enhancing the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury. In 2003, citing Apprendi and Jones, Mr. Stevens filed a pro se habeas petition pursuant to 28 U.S.C. § 2241, claiming that he was factually innocent, and that, pursuant to Jones, the sentencing court had no authority to sentence him based on elements neither stated in the indictment nor proven beyond a reasonable doubt. See Report and Recommendation, GA D.E. 8-2 at 2. The district court dismissed the § 2241 petition because Mr. Stevens had not shown that a petition under § 2255 was inadequate or ineffective to test the legality of his detention, as required before a court may entertain a § 2241 petition pursuant to the savings clause in §2255(e). See 2004 District Court Order, GA D.E. 8-3. The district court force, violence or intimidation, and that . . . during the taking, the victim, Harold Edward Dunn, was shot and fatally wounded. AL D.E. 139. 4 Case: 13-14686 Date Filed: 07/16/2014 Page: 5 of 9 regarded Mr. Stevens petition as a successive § 2255 motion that had been filed without the required prior approval of the Eleventh Circuit. See id. In 2004, Mr. Stevens filed his second § 2241 petition, raising essentially the same claims as before. See 2005 District Court Order, GA D.E. 8-4. The district court dismissed Mr. Stevens petition, again, for failing to satisfy §2255(e). On November 20, 2012, Mr. Stevens filed this present § 2241 petition, alleging for the third time that the district court sentenced him based on elements neither stated in the indictment nor proven beyond a reasonable doubt to the jury, in violation of the rule established in Jones and Apprendi. See GA D.E. 1. Mr. Stevens also claimed that his life sentence exceeds the statutory maximum under § 2119(1), and that he is actually innocent of the crimes charged. See id. II We exercise plenary review over the denial of a § 2241 habeas petition. See Williams v. Warden, Fed. Bureau of Prisons, 713 F.3d 1332, 1337 (11th Cir. 2013). A federal prisoner may challenge the propriety of his conviction and sentence pursuant to a motion under 28 U.S.C. § 2255, but is generally only entitled to file one such motion. A second or successive §2255 motion may not be filed without permission of the circuit court. See 28 U.S.C. § 2244(b)(3)(A). Under limited circumstances, a prisoner may file a subsequent habeas corpus petition under 28 U.S.C. § 2241 without seeking a circuit court s permission. See 5 Case: 13-14686 Date Filed: 07/16/2014 Page: 6 of 9 28 U.S.C. §§ 2241(a), 2255(e). See also Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir. 2003). To do so, however, a petitioner must satisfy the savings clause of § 2255(e), by showing that the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of his detention. 28 U.S.C. § 2255(e). We have held that a prisoner may not use § 2241 to circumvent the restrictions on successive § 2255 motions. See Wofford v. Scott, 177 F.3d 1236, 1245 (11th Cir. 1999). A petitioner must establish at least two necessary conditions to satisfy the threshold, jurisdictional savings clause inquiry: First, the claim must be based upon a retroactively applicable Supreme Court decision. The second, and equally essential, condition is that the Supreme Court decision must have overturned a circuit precedent that squarely resolved the claim so that the petitioner had no genuine opportunity to raise it at trial, on appeal, or in his first § 2255 motion. Williams, 713 F.3d at 1343. III Mr. Stevens argues in his current § 2241 petition that his sentence exceeded the statutory maximum for his offense of conviction. Relying on the Supreme Court s decisions in Jones and Apprendi, Mr. Stevens asserts that he could not be sentenced to the maximum term of life imprisonment based on an element neither stated in the indictment nor proven beyond a reasonable doubt namely, that his violation of 18 U.S.C. § 2119 resulted in the death of another. See 18 U.S.C. § 6 Case: 13-14686 Date Filed: 07/16/2014 Page: 7 of 9 2119(3) (1994). Mr. Stevens instead contends that he was subject to a 15-year maximum sentence pursuant to 18 U.S.C. § 2119(1) (1994). The Supreme Court s holding in Jones was developed in Apprendi and subsequent cases, culminating in the principle that [a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt. United States v. Booker, 543 U.S. 220, 237-44 (2005). Although we recognize Mr. Stevens assertion that the current claims are based in part on Jones, we conclude that they are no different than claims based on the decisions in Apprendi and its progeny. Indeed, Mr. Stevens relies on Jones for essentially the same principle announced in Apprendi: that his violation of § 2119 resulted in the death of another the fact . . . necessary to support a sentence exceeding the maximum authorized by facts established by . . . [the] jury verdict was required to be proven to a jury beyond a reasonable doubt. See Booker, 543 U.S. at 237-44 (discussing Apprendi). We have previously held that Apprendi does not apply retroactively on collateral appeal, including in the context of a § 2241 petition. See Dohrmann v. United States, 442 F.3d 1279, 1281-82 (11th Cir. 2006). See also McCoy v. United States, 266 F.3d 1245, 1256-58 (11th Cir. 2001) (finding Apprendi not retroactive 7 Case: 13-14686 Date Filed: 07/16/2014 Page: 8 of 9 for collateral review pursuant to a § 2255 motion); In re Joshua, 224 F.3d 1281, 1283 (11th Cir. 2000) (rejecting the retroactive application of Apprendi to permit second or successive habeas petitions). We have likewise held that Booker has no retroactive applicability on collateral review. See Varela v. United States, 400 F.3d 864, 868 (11th Cir. 2005) (explaining that Booker s constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review ). We see no reason to treat Jones any differently. Accordingly, because his § 2241 claims are not based upon a retroactively applicable Supreme Court decision, Mr. Stevens petition fails to satisfy the savings clause of § 2255(e). 4 IV 4 In his objections to the magistrate judge s report and recommendation and in his appellate briefs, Mr. Stevens argued for the first time that Johnson v. United States, 559 U.S. 1265 (2010), required the sentencing court to impose a sentence based on the least prohibited act where it is unclear which aspect of the . . . statute the defendant violated. Reply Brief of Appellant at 2 (ellipsis in original). See also GA D.E. 12 at 3. Johnson, however, dealt with the applicability of a state conviction for battery as a predicate violent felony offense for an enhancement under the Armed Career Criminal Act. Where the elements of an offense establish several different ways of committing that offense, and where no record exists to explain how the defendant committed the offense, the Supreme Court held that a district court, in determining the applicability of the ACCA enhancement, must assume that the prior conviction for that offense rested upon the least of these acts. Johnson, 559 U.S. at 137. Because Mr. Stevens failed to raise this argument in his initial habeas petition, it is not properly before us. For the sake of clarity, however, we note that the argument would be inapposite to Mr. Stevens situation even if it had been adequately raised. 8 Case: 13-14686 Date Filed: 07/16/2014 Page: 9 of 9 Based on the foregoing, we affirm the district court s dismissal of Mr. Stevens § 2241 habeas corpus petition. AFFIRMED. 9

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