Karriem McDowell v. FCI Coleman Medium Warden

Filing

Opinion issued by court as to Appellant Karriem J. McDowell. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. Motion for Leave to File Out of Time filed by Appellant Karriem J. McDowell is GRANTED. (See 05/31/2017) (SM/BBM/JEC) [7862516-2]. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 05/31/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10047
Non-Argument Calendar
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D.C. Docket No. 5:13-cv-00099-WTH-PRL

KARRIEM J. MCDOWELL,
Petitioner-Appellant,
versus
WARDEN, FCC COLEMAN-MEDIUM,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 31, 2017)
Before MARCUS, MARTIN, and JULIE CARNES, Circuit Judges.
PER CURIAM:

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Petitioner Karriem McDowell appeals the district court’s dismissal of his
petition for a writ of habeas corpus under 28 U.S.C. § 2241. In his § 2241 petition,
Petitioner argued that he was actually innocent of his enhanced sentence under the
Armed Career Criminal Act (“ACCA”). The district court dismissed the petition
after concluding that Petitioner failed to show that his claim fell within 28 U.S.C.
§ 2255(e)’s saving clause. After careful review, we affirm.
I.

BACKGROUND
In 2007, Petitioner pled guilty pursuant to a written plea agreement to being

a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1) & 924(e)(1). The
Presentence Investigation Report (“PSR”) determined that Petitioner was an armed
career criminal pursuant to U.S.S.G. § 4B1.4 because he had five prior convictions
for serious drug offenses and one prior conviction for a violent felony offense.
Specifically, Petitioner had a conviction for possession of marijuana with intent to
sell, four convictions for sale or delivery of cocaine, and one conviction for
resisting an officer with violence, all in Florida. At sentencing, Petitioner argued
that although the ACCA called for a criminal history category of VI, he should
have a criminal history category of IV because the PSR incorrectly scored some of
his prior convictions. After overruling Petitioner’s objection, the district court
sentenced him to 188 months’ imprisonment. Petitioner appealed his sentence, but

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this Court dismissed his appeal based on the appeal waiver contained in his plea
agreement.
In 2009, Petitioner filed a 28 U.S.C. § 2255 motion to vacate, arguing in
relevant part that his counsel was ineffective for failing to appeal his ACCA
enhancement, that he was actually innocent of the ACCA enhancement because
possession of a weapon was not a violent crime, and that his guilty plea was not
knowing and voluntary because his attorney did not explain the implications of the
ACCA enhancement. The district court summarily dismissed Petitioner’s § 2255
motion, concluding that Petitioner’s claim that counsel had failed to file an appeal
was meritless, as this Court dismissed Petitioner’s appeal based on a valid appeal
waiver. The district court also determined that the basis for Petitioner’s enhanced
sentence was not for a firearm offense as Petitioner alleged, but due to five
qualifying offenses relating to controlled substances and one crime of violence.
This Court subsequently vacated the district court’s judgment without
prejudice pursuant to Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc), and
remanded for the district court to address Petitioner’s claim that his plea was not
knowing and voluntary based on his attorney’s failure to inform him about the
effect of his armed career criminal designation. On limited remand, the district
court determined that Petitioner waived his right to challenge the voluntariness of

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his guilty plea based on his counsel’s failure to properly advise him about the
effect of his ACCA enhancement.
In 2013, Petitioner filed the present § 2241 petition seeking relief from his
sentence for being a felon in possession of a firearm. He argued that he was
actually innocent of the ACCA enhancement and that his counsel was ineffective
for failing to object to his designation as an armed career criminal.
The district court dismissed Petitioner’s § 2241 petition, concluding that it
lacked jurisdiction because Petitioner failed to show that the remedy under § 2255
was “inadequate or ineffective,” as required by this Court’s decision in Bryant v.
Warden, 738 F.3d 1253 (11th Cir. 2013), overruled by McCarthan v. Dir. of
Goodwill Industries-Suncoast, Inc., 851 F.3d 1076, 1100 (11th Cir. 2017) (en
banc).
Petitioner argues on appeal that the district court erred by dismissing his
§ 2241 petition. He asserts that his prior drug convictions should not qualify as
predicate offenses because the controlled substances were never tested in a
laboratory as required by McFadden v. United States, 135 S. Ct. 2298 (2015), nor
were there any Shepard1 documents submitted to support those convictions.
Moreover, his convictions under Florida Statute § 893.13 do not qualify as
predicate offenses because they did not carry sentences of 10 years or more and the

1

Shepard v. United States, 544 U.S. 13 (2005).
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statute lacks a mens rea requirement. Finally, he asserts that the ACCA’s residual
clause is now void pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015).
II.

DISCUSSION
We review the issue of whether a prisoner may bring a § 2241 petition under

§ 2255(e)’s saving clause de novo. McCarthan, 851 F.3d at 1081. Whether the
saving clause applies is a threshold issue, and we may not reach the merits of a
§ 2241 petition unless the district court had jurisdiction to entertain it. Williams v.
Warden, Fed. Bureau of Prisons, 713 F.3d 1332, 1337 (11th Cir. 2013).
A collateral attack on the validity of a federal conviction or sentence
generally must be brought under 28 U.S.C. § 2255. Sawyer v. Holder, 326 F.3d
1363, 1365 (11th Cir. 2003). When a prisoner has previously filed a § 2255
motion to vacate, he must apply for and receive permission from this Court before
filing a successive § 2255 motion. 28 U.S.C. §§ 2244(b)(3), 2255(h).
Petitioner has already filed an unsuccessful § 2255 motion and has not
received permission to file a second or successive § 2255 motion. He nevertheless
argues that he may collaterally attack his sentence by way of a § 2241 petition that
falls within the “saving clause” of § 2255(e). Under the saving clause, a court may
entertain a § 2241 petition if the petitioner establishes that the remedy provided
under § 2255 is “inadequate or ineffective to test the legality of his detention.” 28
U.S.C. § 2255(e).
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The district court dismissed Petitioner’s § 2241 petition because he did not
meet the requirements set forth in our decision in Bryant for establishing eligibility
for relief under the saving clause. Sitting en banc, we recently overruled our prior
precedents interpreting the saving clause, including our decision in Bryant. See
McCarthan, 851 F.3d at 1100.
In doing so, we examined the text of the saving clause under § 2255(e) and
concluded that “[t]o determine whether a prisoner satisfies the saving clause, we
ask only whether the motion to vacate is an adequate procedure to test the
prisoner’s claim.” Id. at 1086. Stated another way, if the prisoner could have
brought the claim in a motion to vacate, then the prisoner had a meaningful
opportunity to test his claim. See id. We explained that there were only a narrow
set of circumstances where § 2255 would be “inadequate or ineffective” to test a
prisoner’s claim. Id. at 1092–93. Under those circumstances, a prisoner may file a
petition for writ of habeas corpus under the saving clause if: (1) he has been
deprived of good-time credits or had a parole determination; (2) the court that
sentenced him has been dissolved or is unavailable; or (3) other practical
considerations prevent a prisoner from filing a motion to vacate. See id.
Because Petitioner had “a meaningful opportunity to test his claim” in a
§ 2255 motion to vacate, the remedy provided by § 2255 “was an adequate and
effective means for testing” the legality of his sentence. Id. at 1087, 1099
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(quotation omitted). In fact, Petitioner presented a claim challenging his ACCA
enhanced sentence in his initial § 2255 motion. See id. (“A motion to vacate is
inadequate or ineffective to test the legality of a prisoner’s detention only when it
cannot remedy a particular kind of claim.”). To the extent Petitioner contends that
his claims were foreclosed at the time of his § 2255 motion, his argument is
without merit, as § 2255 was still an adequate remedy to test his claim. See
id. (“Even if a prisoner’s claim fails under circuit precedent, a motion to vacate
remains an adequate and effective remedy for a prisoner to raise the claim. . . .”).
And in any event, his argument that his prior drug convictions under § 893.13 do
not qualify as predicate offenses is still foreclosed by binding precedent. See
United States v. Smith, 775 F.3d 1262, 1267–68 (11th Cir. 2014) (holding that a
conviction under Fla. Stat. § 893.13(1) is a serious drug offense); McCarthy v.
United States, 135 F.3d 754, 756–58 (11th Cir. 1998) (concluding that a conviction
for sale of cocaine under Fla. Stat. § 893.13(1)(a) carries a 15-year statutory
maximum and thus qualifies as a serious drug offense under the ACCA).
Thus, Petitioner cannot use the saving clause to raise those arguments in a
§ 2241 petition. Accordingly, we affirm the district court’s order dismissing
Petitioner’s § 2241 petition for lack of jurisdiction.
AFFIRMED. 2

2

Petitioner’s motion for leave to file a reply brief out of time is GRANTED.
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