Dudley Bryant, Jr. v. Warden, FCC Coleman - Medium

MARTIN, Before HULL and Circuit BOWEN,* Judge. District Judges, and HULL, Judge: Circuit Dudley Bryant appeals Petitioner district court’s dismissal of his 28 U.S.C. § petition, brought pursuant 2241 habeas in “savings to the clause” 28 U.S.C. 2255(e). § Bryant’s appeal presents the issue to which this alluded in Wof Scott, Cir.1999), 177 F.3d 1236 ford subsequently and left undecided Gilbert (Gilbert II), v. United States 640 F.3d 1293 — (11th Cir.2011) (en banc), denied, cert. U.S. -, 181 L.Ed.2d 743 (2012), Warden, and Williams v. 713 F.3d (11th Cir.2013). The issue is whether 2255(e) §in permits clause a § prisoner bring petition federal a when he has established that his current 235-month for an 18 U.S.C. § 922(g) 10-year conviction exceeds the authorized 924(a). Congress under 18 U.S.C. final, When a conviction has become prisoner usually may federal challenge the legality only through of his detention However, 2255 motion. 2255(e) §in permits Kynes, Knight, Leland H. Holland & §a petition file habeas when a GA, LLP, Atlanta, Petitioner-Appel- motion “inadequate or ineffec- lant. legality tive to test the of his detention.” 2255(e). 28 U.S.C. After review of the Mcnamara,

Linda Julin Amanda C. Kai- record, ser, Office, FL, parties the briefs of the and the Attorney’s Tampa, U.S. Rotker, amicus, Department having Michael A. the benefit of oral ar- * Bowen, Jr., Dudley Georgia, sitting by designation. H. Honorable United ' Judge States District for the Southern District specific requirements peti- five Bryant conclude has satisfied gument, we requirements satisfy proceed clause’s tioner must under 2255(e) why explain Bryant has sat- isfied them. prior that his Bryant proven has “inadequate or ineffective to

motion was I. PROCEDURAL HISTORY and that legality test the of his detention” proceed § 2241 can petition his now A. Indictment (1) from the time of his because: jury grand December a federal throughout initial in 2002 knowingly one count of indicted proceeding our Cir ammunition possessing firearms and while States v. binding precedent cuit’s United felon, being convicted violation of “[i]n (11th Cir.1996), Hall, 398, 401-02 924(e).” 922(g)(1) U.S.C. [18 §§] un that a offense held concealed-firearm § 922(g)(1) prohibits possession While der Fla. Stat. 790.01 was a “violent felo firearm or ammunition a convict- ny” squarely foreclosed felon, § penalty provi- ed 922 contains no erroneously Bryant’s claim that he was § 922(g). sion. See 18 U.S.C. 10-year statutory sentenced above the (2) 924(a); §in subse penalty maximum § penalties 922(g) The for offensés are § Bryant’s proceeding, first quent § in provisions laid out various of 924. As in Supreme-Court’s decision v. 924(a)(2) crime, § § Bryant’s 922(g)(1) States, 137, United 553 U.S. person that a who provides is convicted óf (2008), 1581, 170 L.Ed.2d 490 set forth a § knowingly violating 922(g)(1) shall be new standard to evaluate which crimes years.” than 10 “imprisoned more '924(e), § constitute violent felonies under 924(a)(2). § The maxi- U.S.C. Begay, interpreted and as United 922(g)(1) mum for a crime is 10 Archer, (11th States v. 924(a)(2). years’ imprisonment under Cir.2008), Canty, and United States v. 924(e), known as the Armed Section Ca- 1251, 1255 Cir.2009), overturned F.3d (“ACCA”), prescribes reer Criminal Act (3) Hall; in Begay’s our Circuit higher statutory penalties different and applies substantive and retro- new rule is § 922(g)(1) felon-in-possession offense.' 924(e) actively Bryant’s § claim on col- 924(e)(1) that, provides “[i]n Section (4) review; pure of lateral result person of a who violates section n case § 92A(e)-Begay ap- error and retroactive convictions 922(g)” previous and “has three Bryant’s plication Begay, 235-month felony or a by any court ... for a violent 10-year statutory sentence exceeds the offense, both,” person drug serious in by- Congress maximum authorized than imprisoned be ... not less “shall (5) 924(a); and 924(e)(1). years.” 18 U.S.C. The fifteen 2255(e) illegal claim of de- reaches his 924(e)(1) statutory maximum pen- tention above Brame, prison. life United States alty. Accordingly, vacate the district (11th Cir.1993). in- Bryant’s peti- court’s dismissal .§in are statutory penalties creased forth tion and remand with instructions set to as the “ACCA enhance- often referred herein. ment.” procedural history We review the him notice that Bryant’s gave indictment case, savings clause in

Bryant’s in- intended seek the 2255(e), government prior rulings and our Circuit’s 2255(e). statutory penalties then summarize the creased about We firearms, prior concealed-firearm con- which resulted an initial ad- based on his drug Bryant’s justed convictions. viction and two offense level of 29. that he had charged

indictment these felo- section, In history the criminal the PSI (1) a 1988 Florida convic- ny convictions: only Bryant’s listed not three convictions cocaine; delivery possession tion for and indictment, shown in the but also his other (2) carrying 1989 Florida convictions for convictions. Among them was a 1988 felo- being concealed firearm and a felon ny “Burglary conviction for of a Struc- firearm; of a 1991 Flor- possession convictions, all prior ture.” Given of his delivery possession convictions for ida assigned the PSI Bryant 18 criminal histo- obstructing and for or opposing of cocaine ry points placed him into criminal an officer without violence. history category VI. Bryant’s offense level of 29 criminal Guilty B. Plea in 2001 history category yielded guidelines of VI July Bryant pled guilty to his range imprisonment. of 151 to 188 months’ During plea one-count indictment. A, See U.S.S.G. ch. pt. Sentencing Ta- hearing, the district court informed (2000). ble felony because he qualifying had “3 The PSI also raised offense convictions,” facing mandatory he was level from 29 to 33 under U.S.S.G. years minimum sentence of 15 and maxi- 4B1.4(b)(3)(B), the armed-career-crimi- mum imprisonment, pursu- sentence of life guideline. nal This armed-career-criminal Bryant acknowledged ant to change Bryant’s classification did not crim- understanding penalties. of these VI, history category inal which was Investigation Report Presentence C. already highest The available. offense level of combined with criminal histo- Bryant’s Investigation Presentence Re- (“PSI”) VI, that, ry category guidelines resulted in a port indicated because range Bryant prior felony had 3 of 235 to 293 in prison. convictions for a months felony” drug “violent or a “serious of- D.Objections to the PSI and Sentenc- fense,” subject he to a mandatory was ing Hearing in 2002 minimum penalty years’ imprison- of 15 statutory ment and a maximum penalty of Bryant objections raised several to the 924(e). life, pursuant In Paragraph PSI, including objection an to his classifi- section, 12 of the “Offense Conduct” - cation as an armed career criminal. PSI referenced the prior felony same con- Bryant objection reiterated this at the sen- victions as the indictment. tencing hearing, arguing that prior conviction, concealed-firearm which was

Bryant’s base offense level pur- was indictment, referenced in 2K2.1, quali- did not suant to U.S.S.G. for his fy 922(g)(1) felony” “violent felon-in-possession offense. 924(e)(2)(B) Bryant and, therefore, received a 4-level increase under he should 1(b)(5) possessing subject 2K2. for in not be to the firearms increased offense,1 924(e)(1). felony connection with another maximum penalty of life in and a 1-level increase under government Bryant 2K2. The countered that 1(b)(1)(A) possessing for three or felony more had “5 or 6 convictions which also Biyant’s felony possession person other was reasonably offense firearm to another of cocaine and cocaine base. The PSI also should have known that the firearm would be (b)(5) noted that the 2K2.1 enhancement felony. used in another appropriate Bryant was because transferred a review, pur- After its exhaustive the district used” for could have been got court found most we’ve “[a]t poses. qualifying predicate three” convictions. claim government’s In to the response govern- The district court then asked the qualifying other had several ment, you are the four or five that “What convictions, court stated: felony the district talking response, were about?” In [Bryant’s prior all of going through “I’m conceded, government “Maybe they were convictions], there’s a reference because qualifying....” government non then that could have been 4 or 5 other felonies suggested mistakenly that it had counted going I’m government, from the used non-qualifying drug govern- offenses. The The district to find out if that’s accurate.” object ment did to the district court’s thorough court then conducted examina- ... finding there were most “[a]t para- felony offenses listed tion convictions, predicate qualifying three” criminal histo- graphs through 49 of the qualifying drug were the two convic- which Bryant’s to determine ry section of PSI single tions and the concealed-firearm con- support could an increased which offenses government viction. The never directed Bryant’s prior burgla- the district court to The district court’s review fact, ry government conviction. ad- thorough specifically that the court so suggest any point during failed to convictions, Bryant’s prior all of dressed thorough Bryant’s district court’s review of convictions, including his misdemeanor burglary prior prior convictions that his obviously non-qualify- other than § 924(e)-qualifying conviction was a of- public for ing misdemeanor convictions fense.2 to cash stolen drinking attempting

checks. Ultimately, the district court overruled Bryant’s objection to his concealed-firearm review, the

During the district court’s conviction based on this Court’s decision Bryant were afforded government and Hall, (expressly holding at 401-02 directly opportunities respond multiple carrying that a a concealed conviction qualifying to the nature of the convictions. firearm under Florida law is a “violent parties agreed Bryant’s prior The that two 924(e)(2)(B) felony” § that under because delivery of cocaine were convictions for potential risk of posed offense a “serious § qualifying pursuant offenses its physical injury”).3 Consequently, after drug These were the two convictions listed thorough Bryant’s of all of criminal review Bryant’s parties The disa- indictment. history, only court found three the district nature of greed qualifying as to the § co- 924(e)-qualifying convictions: two convic- Bryant’s prior concealed-firearm tion, caine-delivery convictions and one con- qualifying convic- which was the third cealed-firearm conviction. tion listed in his indictment. again "Burglary Bryant’s prior of a Structure” offense

2. The discussion related to burglary whether that a "crime of conviction addressed found that the offense was not a "crime under by conviction was of violence” 4B1.2. violence” as defined U.S.S.G. portion the career offender object. Again, government did not guidelines. The district court concluded that later, "clearly Supreme de- "Burglary a Structure” offense Court’s 3. As discussed Begay effectively because it [was] not a crime of violence” overturned our cision structure, burglary Canty, not a dwell- involved of a in Hall. See United States ing. government object. 1251, (11th Cir.2009); did not United 1255 570 1347, Archer, (11th 531 F.3d States v. reviewing other convictions After several Cir.2008). PSI, listed in the the court returned to finding changed Bryant’s statutory required by from this Court This U.S.C. 2255(h). years 2244(b)(3)(A), to life in §§ from 10 prison. The district court sentenced Request for Leave to File H. Succes-

Bryant prison, to 235 months low sive 2255 Motion range, to guidelines end of the be followed by years supervised release. 2008, Bryant sought In November au- from thorization this Court to file a second Appeal E. Direct in 2002 motion, relying or successive Bryant appeal, raising only filed a direct Begay purposes “new rale” of law for preserved that he had suppression issue 2255(h). §of In pled guilty. when he October Congress substantially restrict- affirmed. summarily See United ed second or successive collateral attacks F. Bryant, App’x States v. by enacting the Anti-Terrorism and Effec- Cir.2002). (“AED- Penalty tive Death Act of 1996 PA”). 2255(h), AEDPA Under bars the F. First 2255 Motion filing of a second or successive 2005, Bryant In October filed his first motion unless this Court certifies § 2255 motion to vacate his sentence. (1) proposed 2255 motion is based on Bryant argued “actually that he was inno “newly proven discovered evidence if statutory penalties cent” of the increased in light and viewed of the evidence as a §in government, because the failed whole, would be sufficient to establish prove, using Shepard 4“-approveddocu clear and convincing evidence that no rea- ments, that his two drug Florida convic sonable factfinder would have found qualified drug tions as “serious offense[s]” offense”; guilty movant “a 924(e)(2)(A). argued also law, new rule constitutional made ret- generally government failed to roactive to cases on collateral review documents, prove, using Shepard-approved Court, previously that he had a conviction for a violent felo 2255(h) (empha- unavailable.” 28 U.S.C. 924(e)(2)(B). ny But, he did not added); Dean, sis In re specifically reference his concealed-firearm (11th Cir.2003). conviction in his first 2255 motion. In November this Court denied The district court denied Bryant’s application for leave to file a sec- § 2255 motion as time-barred. Both the motion, ond or successive 2255 reasoning district court and this Court denied Cer- was not a rale of “new consti- (“COA”). tificate of Appealability 2255(h) § tutional law” under it because § G. Second 2255 Motion 2008 merely interpreted a substantive criminal 924(e). statute, i.e., added). § (Emphasis 2008, In September Bryant attempted to § file a second 2255 motion in the district § I. 2241 Present Petition court, that, arguing under the 2008, court, In December quali- Court’s decision in not the district Begay, he did fy Bryant pro for the life penalty corpus peti- maximum filed se habeas 924(e). tion, 2241, §in pursuant § to district court dismissed 28 U.S.C. and a Bryant’s § second 2255 motion because he memorandum of law in support. his to requisite § failed obtain the 2241 petition, Bryant authorization asserted that States, 13, 1254, (2005). Shepard 4. v. United 544 U.S. 125 161 L.Ed.2d 205

1261 2255(a) vacate); Sawyer v. § motion to “inadequate or ineffec- had been (11th Holder, his 235- Cir. legality 326 F.3d challenge tive” to prec- 2003) our Circuit’s procedural-default sentence because rule (applying month foreclosed his in Hall had edent petition). §a 2241 habeas motion in during his first claim futility made clear that This Court has precedent to adverse Circuit of a claim due. Begay and Bryant contended appeal does not con- at the time of direct Archer, in Hall was this Court’s de- procedural cause to excuse stitute therefore, his con- abrogated; effectively McCoy, fault in a first 2255 motion. qualify did not conviction cealed-firearm (applying procedural F.3d 1258-59 924(e)(2)(B), felony” under a “violent in a first 2255 motion be- rule default predicate the three not have and he did Appren- did not raise his petitioner cause his necessary to increase sen- convictions though even appeal, claim on di6 direct 924(e). essentially Bryant tence under by. “every rejected was the claim circuit exceeded 235-month sentence argued his the issue” at had addressed which years of 10 his time). de- ruling procedural A based on Bryant 922(g) crime. further for his for us to obviate the need fault would 2255(e) per- §in savings clause argued the about the the difficult issue here address petition § 2241 bring his mitted him savings clause in sentence. challenging illegal Bryant’s court dismissed The district easy way take that We cannot timely appealed Bryant petition. rule is procedural-default out because in 2012.5 but is an affirmative de jurisdictional, not subject to waiver DEFAULT fense II. PROCEDURAL States, Howard v. United government. outset, why proce- one wonders At the (11th Cir.2004); 1068, 1073 Shukwit F.3d by Bryant does default or waiver dural d States, F.2d v. Unite Bryant did not raise his case. resolve Jordan, (11th Cir.1992); States United (or in his even appeal direct Cir.1990). (11th In the 915 F.2d motion) that his concealed-firearm a claim gov appeal, how on district court and felony” and was not a “violent conviction any procedural has' not asserted ernment above the illegally he sentenced 924(a) § 2241 §in as a defense 10-year statutory maximum default proceed attempt that reason. or his petition By every clause. cases, § 2241 this would §In 2255 and measure, government inten reasoned default, unless procedural in a result default any procedural tionally has waived prejudice can establish “cause Bryant Shukwit, 904; 973 F.2d defense. See on direct to assert his claims for his failure Jordan, Nothing herein at 629. States, 266 McCoy v. United appeal.” indicating Cir.2001) be read as should (apply- 1258-59 prejudice. a has shown cause rule to procedural-default the ing 2255, proceeding under § when appeal not to the Bryant need a COA 5. does not peti- 2241). § 2241 § of his court’s dismissal district Holder, 1363, Sawyer 326 F.3d tion. See (11th Cir.2003) pursu- (stating 466, 1364 n.3 Jersey, 120 U.S. Apprendi v. New 530 2253(c)(1)(B), § a federal 28 U.S.C. ant (2000). 435 147 L.Ed.2d only proceeding prisoner when needs a COA 1262 default, 2255(e) § leaving procedural ings

Before there clause of question is a why Bryant’s Williams, is one failure to more reason law we review de novo.” 713 924(e)-violent § particular felony raise this petitioner 1337. The bears -§ claim in 2255 motion his first does not demonstrating § burden of that the 2255 below, matter here. As discussed the lan- remedy “inadequate was or ineffective to 2255(e) § guage savings states that the legality test the pur of his detention” for regardless of applies clause whether fed- 2255(e). Warden, §of poses Turner v. prisoner apply” eral “has failed to for Cir.), 1333 cert. de § — 2255 the sentencing relief whether nied, -, § court “has denied him” 2255 relief. See (2013). L.Ed.2d 923 2255(e). Therefore, § 28 U.S.C: - 924(e) § THE particular failure to raise this IV. SAVINGS CLAUSE § claim in his first 2255 motion does not 2255(e) Section states in full: preclude him from at least attempting to application An for a writ of cor- habeas proceed the savings clause in pus in prisoner behalf of a who is au- 2255(e). § apply thorized to by for relief motion addition, recently this Court held that section, pursuant to this shall not be 2255(e) savings § whether clause in appears entertained if it appli- § open portal petition to a relief, apply cant has failed to for jurisdictional a “threshold” issue that must motion, to the court which sentenced delving be decided before into the merits him, or that such court has denied him petitioner’s claim applicable and the relief, unless it' also appears that defenses. See 713 F.3d at 1337- remedy by motion is inadequate or inef- (concluding savings juris- clause is fective to test the legality of his deten- and, thus, dictional limits- the district tion. subject-matter jurisdiction court’s to en- 2255(e)’s 28 U.S.C. Section lan- §a petition tertain even when the guage application for a writ of habe- —“An government wishes to concede that corpus” petition filed under —includes petition- allows the U.S.C. which filed here. claim); er’s Sawyer, see also 326 F.3d at 2255(e) Section provides thus that a 1366-67 (concluding clause in § 2241 petition “shall not be entertained” 2255(e) apply petition- did not if a federal has apply failed to claim, alternatively er’s assuming but motion, relief already or has petitioner had made necessary relief, been denied such “unless it also clause, showing to invoke the appears remedy by motion is deciding petitioner’s then claim inadequate or defaulted). legali- to test the procedurally ineffective ty his detention.” 28 U.S.C. reasons, For these we must decide the added). (emphasis quoted exception This jurisdictional question of whether the sav- 2255(e)’s bar on a 2241 petition is ings clause in permits Bryant to commonly referred to “savings as the bring §a 2241 petition claiming that his clause.” sentence is above the authorized 2255(e)’s maximum penalty. language Section —“shall be speaks imperative “in entertained” — III. STANDARD OF REVIEW regarding terms a district power court’s claim,” a prisoner may bring “Whether entertain a [§ 2241] and “in enact- petition 2255(e), U.S.C. Congress under the sav- clearly restricted

1263 Wofford, fed- of firearm. 177 F.3d at jurisdiction of the a 1237. subject-matter the § petitions. 2241 over eral courts” He was sentenced to 300 months the at 1340. 713 F.3d months, conspiracy and concur- drug 60 rently, felon-in-possession for the offense. earlier, § its And, as noted § first motion was Wofford’s 2255 denied. a regardless of whether applies own terms applica- This Court denied Wofford’s Id. apply” for “has failed to federal § sentencing file a second 2255 motion § whether the tion to because 2255 relief or - 2255(h)’s him” 2255 relief. exceptions court “has denied he failed to meet savings Rather, touchstone of the the AEDPA’s bar on or successive second §a motion would clause is whether 2255 . Id. 2255 motions. at 1238. “inadequate

have or ineffective been peti- filed then a habeas Wofford prisoner’s] deten- legality [the test tion, alia, raising, inter a claim that his tion.” 28 U.S.C. as a offender under classification career cases, in the nothing In we prior found guidelines improperly predicated “was this lan- legislative history explaining what belief that upon [district] court’s it savings means. See guage in the clause underlying not examine could offenses 1239-41; Wofford, see also making determination.” See id. (“The II, history F.3d at 1307 Gilbert however, claim, did not Wofford provide savings clause does not behind the the statuto- 300-month exceeded However, much its help meaning.”). with The ry penalty. See id. district II, and Wofford, our decisions Gilbert petition, dismissed and court what “inad- do discuss the terms Williams appealed. Wofford “detention” equate or ineffective” and/or type might open of claim mean and what juris- § 2241 portal clause savings Meaning Savings Clause A. 1236; Wofford, diction. F.3d Gil- See appeal, this Court described sav- On 1293; Williams, II, F.3d bert F.3d which, legislative history, ings clause’s decisions, 1332. these which We review above, yielded concrete an- no mentioned guide analysis. our id. at After canvass-

swers. See 1239-42. decisions, V. WOFFORD SCOTT circuits’ we determined ing other approach the Seventh the best In addressing first case our Davenport, decision In re Circuit’s clause, framed the before we issue (7th Cir.1998). Wofford, See F.3d 605 one, “what cir- asking Court as a broad 1242-44. The Seventh Circuit’s F.3d at involving than cumstances other those argument rejected the Davenport decision are practical difficulties covered allows clause Wofford, 177 F.3d that the savings clause[?]” histo- light legislative petition of 2255’s whenever AEDPA In 2241 habeas decisions, identi- ry other circuits’ or successive 2255 motion. a second bars situation, of a non- fied one conviction Wofford, 177 at 1244. es- See offense, when existent relief, all that habeas sence of pos- applies, only speculated as to the requires, prison- is to allow Constitution “ sible of another in the existence obtain opportunity er ‘a reasonable id. at 1244-45. context. See of the fun- judicial determination reliable and sen- legality his conviction damental Wof- Wofford, petitioner, Charlie ” tence,’ in a appeal, either on direct ford, drug court to a pled guilty federal motion, in a successive being possession felon conspiracy by AEDPA. (quot- prente motion authorized overturning Court decision circuit 609). ing Davenport, 147 F.3d at precedent.” Id. at 1245. Citing Davenport, this Court in Wofford Application B. to Wofford’s Claims dicta,

described, in two circumstances un Applying principles, these we savings concluded der which the clause allow a savings that the clause proceed did not cover Wof- federal to 2241. (1) First, dicta, ford’s claims because he panel opined, “was not con- Wofford victed of retroactively crime which a savings “applies clause to a (1) applicable Supreme petitioner’s claim” when claim Court decision over- “is turning prior circuit has upon retroactively applicable based made Su (2) (2) nonexistent”; decision”; clear is preme none of his sen- holding Court “the tencing claims upon rested a “circuit law- Supreme Court decision establishes busting, retroactively petitioner applicable Supreme convicted for was a nonexis (3) (3) decision”; offense”; “proce- tent “circuit he had a square law ly opportunity dural foreclosed such a claim at raise each of his the time it claims and have it otherwise should have been decided either at trial or raised trial, petitioner’s appeal.” Id. at appeal, 1245. We concluded that Wofford analysis “attempting motion.” Id. at 1244. This to use simply escape covers actual innocence chal restrictions on Wofford second or lenges akin to the successive post-Bailey'7 motions.” Id. petitions, such as when a Supreme Court VI. GILBERT v. UNITED subsequent decision to conviction means STATES petitioner’s

that a offense conduct is no longer criminal. See 713 F.3d In savings decision, our next clause Gil- Wofford). (discussing II, bert definitively held that the sav- ings clause does not guidelines- reach a Second, observed, in dicta Wofford error sentencing claim prisoner’s when the again, that the “might apply clause sentence does not exceed the involving to some claims a ‘fundamental II, maximum. Gilbert 640 F.3d at 1295. sentencing defect’ in where petitioner had not had an opportunity judi- to obtain History A. Procedural in Gilbert’s Case cial correction of that defect earlier.” Wofford, at 1244 (quoting Daven- petitioner Ezell pled Gilbert 611). port, 147 F.3d at crimes, We guilty declined to to two drug including pos- decide, however, “whether of crack cocaine with session intent sentencing [such] extends claims distribute. Id. at 1298. His in- offense ... or what a ‘fundamental defect’ in a grams volved 50 or more of crack cocaine might be.” Id. at 1244-45. “It is and carried a maximum penalty of life (cid:127) hold, do, enough .to as we only imprisonment U.S.C. 841(b)(1)(A) (1996). that may conceivably claims be Id. At Gilbert’s sen- covered clause are tencing those the district court classified upon retroactively based applicable Su- him as a career-offender under 4B1.1 of States, 137, 144, firearm, Bailey it), v. United ployed” merely possessed 501, 506, 508, statute, 133 L.Ed.2d 472 superseded 924(c), 18 U.S.C. (1995) (holding person may that a be convict- Timmons, recognized in United States v. "using” ed crime of a firearm under 18 1246, 1249, (11th Cir.2002). 924(c) only U.S.C. "actively he if em- (which and in Archer. mandatory Begay at in our Circuit Court were guidelines Begay place Florida Archer to our time), prior to review and part in due his We Id. conviction. en banc in Gilbert II subsequent decision 790.01 concealed-firearm status This career-offender in at 1298-99. context. and crimi- offense level

increased Gilbert’s Intervening in Decisions B. guidelines history category, yielding nal a Archer range imprisonment. to 365 months’ of 292 court sen- The district

Id. at 1299-1300. Court, Supreme Begay, In in prison. to 292 months tenced Gilbert 924(e)(2)(B)(ii), which defines addressed this sentence Importantly, Id. at 1300. burgla- a “is felony” as crime that “violent statutory maximum Gilbert’s was less than arson, extortion, use of or involves ry, drug his imprisonment life sentence of or conduct explosives, otherwise involves Id. at 1298-1300. offense. potential a risk of presents that serious injury to 18 U.S.C. physical another.” his challenged appeal, On Gilbert direct 924(e)(2)(B)(ii). before the question The status, that a con arguing career-offender Court was a New Mexi- Supreme whether as a qualify offense not did cealed-firearm driving conviction for under the influ- co § 4B1.2 of the violence” under “crime of (“DUI”) felony” qualified as a “violent In 1998, ence at 1300. Unit guidelines. Id. 924(e)(2)(B)(ii). (Gilbert I), the last clause in 138 F.3d ed States Gilbert 139-48, 128 S.Ct. at Begay, 553 U.S. Cir.1998), re this Court our 1584-88. argument, based on jected Gilbert’s decision, con that a 1996 Hall held in Be- Supreme Court determined The offense Fla. Stat. cealed-firearm (1) felony” term does gay that the “violent “ potential ‘presents 790.01 serious “every presents apply not crime ” mean injury’

risk within the physical injury potential physical risk of serious 4B1.2(a)(2)’s “crime definition of ing of (2) another,” to crimes that but refers I, F.3d at of violence.”8 Gilbert similar, in kind as well “roughly are Gilbert filed his first posed,” risk the offenses enu- degree of career- challenge motion but did 924(e)(2)(B)(ii),namely, §in “bur- merated § 4B1.1 of the status under offender arson, extortion, involving or crimes glary, II, at 1301. guidelines. Gilbert 142-43, explosives.” Id. at the use of motion, and The court denied the district (internal quotation marks at 1584-85 S.Ct. denied COA. Id. Court omitted). crimes “all These enumerated violent, and purposeful, involve typically filed a years Ten later Gilbert 144-45, conduct.” aggressive or his first reopen motion to amend (internal marks quotation at 1586 challenge his wanted to motion. Gilbert omitted). Supreme The concluded to the 4B1.1 career-offender status due (1) as DUI liability crimes such strict intervening decisions from the arson, (2) burglary dwelling, or ex- guidelines of a defines the 8. Section 4B1.2 tortion, explosives, or of violence” as follows: involves oth- term "crime use of presents means erwise involves conduct term "crime of violence” law, punisha- injury physical or potential under federal state offense serious risk exceeding imprisonment for a term ble another. year, 1.2(a). one that—(cid:127) § 4B U.S.S.G. use, attempted an element has as use, physical force threatened use of or another, against person vio “Does generally purposeful, do not involve lows: lent, conduct can be aggressive apply to claims the sentenc- “any criminal intent at misapplied committed without ing guidelines pre- were (2) thus, all,” and New DUI of Mexico’s mandatory guidelines Booker9 era in a qualify felony” as a fense did not “violent way substantially that resulted in a longer 924(e)(2)(B)(ii). clause in under the last statutory that exceed sentence does not 145, 148, 128 Id. at S.Ct. at 1586-88. (emphasis maximum?” Id. at 1306 add- ed). statutory-maximum We included the Begay, after this Court Several months it qualification “to make clear we are not Archer, decided United States v. conclud- issue, deciding that we imply and do not “clearly that a new Begay set forth any view about how that issue should be which crimes consti- standard to evaluate presented decided when and if it is in some tute and ‘crimes of vio- ‘violent felonies’ case.” Archer, other Id. lence.’” 531 F.3d at 1352. Al- though felony” was a “violent case II Assumptions in Gilbert D. Two 924(e) statute, applied under the Be- we gay designation the “crime violence” discussion, delving Before into its the en in guidelines because the definitions of banc Court in II made assump- Gilbert two virtually those terms are identical. Id. In First, Id. at tions. 1302-05. we assumed Archer, that Begay we held undermined that, if Begay and had Archer been decid- point Gilbert I to the and abrogation, ed at the time of sentencing, Gilbert’s his of carrying “the crime a concealed lower, guidelines range would have been longer firearm no be considered a and he would have received lesser sen- crime of Sentencing violence than his tence current months. at Id. Guidelines.” Id. Second, that, 1305. we assumed were we favor, to rule he Gilbert’s would receive C.Gilbert II En Banc remand, given a lesser sentence on his intervening Based on these decisions guidelines range. lowered Id. We Archer, Begay and Gilbert’s motion asked stressed, however, these were the district court either to his reopen assumptions and that we were “not so sure proceeding or to his mo- construe proposition.” of either Id. at 1302-05.10 petition tion as a it to and allow E. proceed Gilbert’s Did Not Sentence Exceed Statutory Id. 1301-02. the dis- After Maximum relief, trict court appealed. denied Gilbert assuming guidelines Even Gilbert’s Id. at 1302. range sentence would have been low- II, er, rehearing rejected that, On en banc in argument Gilbert Gilbert’s the issue presented framed as fol- pre-J3oo/c- because he was sentenced Booker, that, 9. United assumption, given States 543 U.S. ond we stated (2005). -Booker, 160 L.Ed.2d 621 post advisory guidelines, nature of the Gilbert's sentence on remand "could be the Regarding assumption, the first we ex- longer.” same or Id. at even 1304. We de- plained government waived had its aggravated scribed nature of two Gilbert's right mandatory insist on life offenses and stated based on the 18 part bargain plea of its with and that Gilbert 3553(a) factors, "[a] sentence U.S.C. of 292 government may not have so "if it done months, sentence, or even a life would not be could not have counted on the career offender disproportionate unreasonable to the enhancement to double Gil- [his] sentence.” crime.” Id. at 1305. II, bert 1303-04. the sec- As to way era, statutory drop “in a would er, mandatory-guidelines 2255(h) high end of his sentence was on second and successive bar penal- range, motions, the maximum not guidelines purpose, its render it defeat Id. at 1306-07. statute. ty prescribed Moreover, according to pointless.” ex- that a critical difference indicated We fundamental canons construc- mandatory pre-Booker between isted tion, ambiguous the “generally worded and penal- (cid:127) statutory maximum guidelines clause” could “statutory explained that ties. Id. We “specifically override AEDPA’s worded “punishment is a ceil- maximum sentence” clear bar on or suc- second convicted beyond which no defendant 2255(h). cessive motions” in Id. crime committing particular that for regardless of the circum- be sentenced Finality G. Interests crime, regardless the of the of stances II The en Court then heavi- banc Gilbert history, regardless the and of defendant’s ly emphasized importance finality the of at 1306. “To sentencing guidelines.” Id: interests in criminal convictions and bal- inconsistency of [between the extent finality against anced interests chal- those statute], range and the guideline to lenges guidelines-based errors. We to statutori- would have bend guidelines critically important nature reasoned: “The limits, way other not ly prescribed finality safeguarded of the interests reiterated that around.” Id. 1307. We 2255(h) an weighs heavily against ... penalty was maximum Gilbert’s interpretation savings of the clause [in crack of- imprisonment for his cocaine life 2255(e)] or that would lower the second §_ 841(b)(1)(A) U.S.C. . fense guide- and permit successive motions bar (1996), his- regard without criminal years the denial lines-based attacks after tory. id. at Gilbert’s See an motion.” at 1309. of initial Id. top not the end of explained “[sentencing guide- that the We correctly guidelines range. calculated many complex, the provisions lines are and Id. at 1306-07. English and those use it are language who Trump Savings Not Does F. Clause what imperfect, and the law about case 2255(h) guidelines and sundry various and mean in factual sit- they apply whether different addressing meaning of the sav- 2255(e), § in we also concluded constant of flux.” Id. ings clause uations in a state II that AEDPA restrictions Gilbert create sought a rule Gilbert 2255(h) motions on successive do every type kind of apply “would “ ‘inadequate remedy render enhancement, there are scores of which ” savings purposes ineffective’ sentencing guidelines.” Id. at 1309-10. §in Id. at 1308. clause Other- however, stated, guide- allowing We wise, explained, “the claim to proceed lines-misapplication second or eviscerate [AEDPA’s] would AEDPA clause and avoid the 2255(h)], [in successive motions bar 2255(h) §. havoc bar “would wreak could an endless stream of prisoners file Congress worked finality interests motions, none of which could be provi- hard to with the AEDPA protect so without a determination of the dismissed at 1310. sions.” Id. they of the raise.” Id. We merits claims II stressed The en banc Gilbert Court addressing that other circuits observed (h) judgments was one finality relationship also between restric- behind AEDPA’s interpret principles clause in central refused to tions on second or successive 2255 mo- decision establishing that he was “convict- all, tions. After if second or successive ed of a nonexistent crime.” Id. at 1319. were not “greatly 2255 motions restrict- cautioned, however, We that this state- ed,” there would be “no end to collateral ment in was dicta all because Wofford attacks on convictions and sentences.” Id. of Wofford’s claims “were sentencing (internal quotation marks omitted claims, ‘none of upon which rested a circuit adopted). and alteration We cited several law-busting, retroactively applicable Su- cases explaining the im- preme Court decision’ of them “[a]ll portance finality, such McCleskey could have been presented at trial or on Zant, appeal.” Id. (quoting Wofford, 177 F.3d at (1991), L.Ed.2d 517 “ which stated that a 1245) (alteration omitted). We stated: system ‘procedural permits which an “The actual holding of the deci- Wofford repetition inquiry endless into facts and sion, correct, which is undoubtedly is sim- law a vain search for ultimate certitude ply that the savings clause does not cover implies a lack of pos- confidence about the sentence claims that could have been justice sibilities of that cannot but war raised in earlier proceedings.” Id. (citing with the underlying effectiveness of sub- 1244-45). Wofford, 177 F.3d at ” II, stantive commands.’ Gilbert at (quoting McCleskey, 499 U.S. at Savings I. May Clause Permit Pure 1469). We concluded § 92i(e)-Begay Error Claims that, “for error, claims of sentence at least II, In Gilbert the en banc Court also where the statutory maximum was not appended a footnote explaining what the exceeded, point finality where holds its may have meant when it against own error correction is reached not Wofford suggested that “the savings ‘may clause later than the end of the first round of conceivably’ apply to some collateral review.”11 Id. at (emphasis claims in added). some circumstances where there awas fundamental defect in sentencing Savings May H. Clause Permit Actual- that the prisoner had no opportunity to Innocence Claims have corrected before the end of his (cit- 2255 proceeding.” II, In Id. at 1319 n.20 Gilbert the en banc Court ac- ing Wofford, 1244-45). 177 F.3d at knowledged that other permit circuits fed- We explained in prisoners eral dicta that to use the “the savings panel clause to Wofford bring “actual innocence” have had in mind ... pure claims in petitions, errors, by such as claims which we mean originating under errors in the Bailey. application Id. at explained 1318-19. of the ‘violent felony’ We enhance- ment, panel had Bailey-type, defined in 18 U.S.C. Wofford § 924(e)(2)(B), actual-innocence-of-the-crime claims resulting higher in a statu- mind it when stated that the savings tory clause minimum and maximum sentence would permit prisoner 924,(e).” to bring added). Id. (emphasis petition based on a “retroactively applica- We noted that a “Begay.error in the classi- ble, circuit law-busting” Supreme Court fication prior of a conviction that was used interpretation We added that a pin, restrictive 518 U.S. of the (1996), clause in did not L.Ed.2d 827 which held that the AED- violate Suspension Clause of the imposed Constitu- PA prisoners restrictions on state did tion. primarily II, Id. 1316-17. We relied Suspension not violate the Clause. Gilbert Court's decision in Felker v. Tur- 640 F.3d at 1317. AED- not-survive after exception did tence an enhanced impose Id. at 1320-22. 924(e)'would resulted PA was enacted. necessarily have a term of being sentenced the defendant II be- pointed out Gilbert We (cid:127) would what that exceeded imprisonment he was drug crimes for which cause of “the without statutory maximum have been convicted, statutorily eligible was Gilbert Thus, error pure Begay Id. error.” years of between for a sentence conces- government’s fit within “would added). And (emphasis life.” Id. at 1322 to er- applies clause sion that application if the error “[e]ven beyond ain sentence rors that resulted enhancement offender 4B1.1 career ap- have statutory maximum would undone, would still be statu- Gilbert" were (emphasis Id. for the error.” plied but years of 10 for a sentence torily eligible added). added). (emphasis life.” Id. error pure Begay reiterated We II, Gilbert’s sentence because Gilbert error. Id. Gil- claimed not Gilbert’s statutory pen- maximum not exceed his did was “that his sentence claimed error bert’s emphasized imprisonment, alty of life in the an error involved Archer calculation deciding not whether we were guidelines, § 4B1.1 application bring a permit would in a sentence did not result and that error claiming his sentence ex- petition § 2241 , maximum.” beyond the penalty: ceeds decided Gilbert the en banc Court What savings clause does that “the II was a claim not decide whether We do not do sentencing errors that apply to misap- were sentencing guidelines beyond the imprisonment the term push in a time brought be plied Id. statutory maximum.” decide § motion. Nor do we if 2255(e) per- § would savings clause in Actually Innocent Not Gilbert Was J. peti- § bring a prisoner a to mit 22J/.1 Being a Career Offender to a he was sentenced claiming that tion argument that rejected Gilbert’s alsoWe exceeding the imprisonment term of being a career actually innocent of he was de- we do statutory maximum. What guidelines, § 4B1.1 of the offender under not savings clause does is that the cide charged not Gilbert “was explaining that in a bring to a federal authorize of, being with, he convicted nor was claim, would oth- which petition § guide- “If at 1320. offender.” Id. career 2255(h), § that the barred erwise be crimes, they were lines enhancements misapplied were sentencing guidelines in the indictment charged would have to be longer in a sentence that resulted way beyond a reason- jury proven to maximum. statutory exceeding the not And, the actual-inno- Id. able doubt.” added). (emphasis Id. at 1323 Sawyer articulated exception cence Whitley, 505 U.S. (2013) v. WARDEN VII. WILLIAMS (1992), apply not to Gil- did L.Ed.2d 269 decision, clause Our third (1) not a death his case was because bert claim Williams, a prisoner’s involve did (2) a con- case; claim was not his the authorized exceeded that his sentence (3) claim; meet would fail to he stitutional Williams, penalty. statutory that, error, he for the requirement but Williams, faced In F.3d at 1334. ineligible for statutorily have been would and Gilbert open the issue left received; nar- the sentence he Wofford reaches savings clause II —whether actual-innocence-of-sen- pre-AEDPA row ed, § that a the statuto- claims sentence exceeds Williams filed another motion. ry maximum. See id. motion, Id. at 1336. In that ar- Williams that, gued Begay, burglary under his of- Williams, petitioner, Albert

In not qualify fenses did as violent felonies tried on one count of was and convicted 924(e) therefore, § purposes and, for his firearm, being possession a felon in of a 10-year 293-month sentence exceeded 922(g). id. at violation See statutory 922(g)(1) maximum for his subject was increased stat- fel- Williams to the utory penalty prison of life in on-in-possession Denying under conviction. Id. 924(e) prior due to his Florida relief, three district court concluded that it of a burglary dwelling convictions: two for jurisdiction lacked over Williams’s succes- one robbery. Williams Id. was sive 2255 motion because had not he to imprisonment. sentenced 293 months’ this Court for moved authorization file At trial and on appeal, Id. direct Williams § 2255 successive motion. Id. Williams object of in- application did appeal. did not Id. statutory penalties creased under In Williams filed a 2241 habeas 924(e)(1) theory based on the that his petition, arguing that prior qualify convictions did not as “violent allowed the district to hear court 924(e)(2)(B). under felonies” §his 2241 petition upon and rule the Be- 1999, this Court affirmed con- Williams’s he gay previous § claim raised in his viction and sentence. United States v. motion, i.e., that prior burglary his convic- (11th Cir.1999) 182 F.3d 936 qualify tions did not predicate felonies (unpublished op.). table result, as a his motion, In his first Williams ar- above the maxi- gued his counsel rendered ineffective mum applicable 922(g)(1) his offense. by failing object assistance to the use of Id. The district court dismissed Williams’s burglary predicate convictions as of- § 2241 petition. government Id. The con- to support fenses his increased ceded in district court appeal and on 924(e). Williams, penalties savings that applied type the clause the to 1335. He argued also that the claim sought Williams to Florida crime of of a burglary dwelling § bring petition in his claim of —a felony” was not a “violent 924(e) pur § e-Begay error 924(e)(2)(B). § Id. The district court de- statutory exceeds pen- that the maximum § nied Williams’s 2255 motion and his re- § alty 922(g) for a crime. Id. quest for a In COA. Id. this Court denied a COA and his motion reconsid- Savings A. Clause is Jurisdictional eration, noting even if bur- Williams’s glary conviction did not qualify a violent appeal, On this Court in Williams first felony, his prior other sup- convictions question addressed the of whether we ported the penalties increased accept government’s could the concession § Id. savings that the clause applied

After several claim. other unsuccessful collat- Williams’s Id. at After a 1337-38. attacks,12 eral discussion, and after was decid- thorough that “in concluded 60(b) Specifically, relying Supreme the of Civil Procedure from the denial of his Williams, Court’s Shepard Taylor decisions in and 2255 motion. F.3d at States, United 495 U.S. 1336. Williams also filed an unsuccessful (1990), petition 109 L.Ed.2d 607 Shepard Taylor. Williams twice un- based on successfully sought relief under Federal Rule Id. 2255(e), broadly [AED- too would eviscerate clearly ply re- Congress enacting motions, jurisdiction of or successive subject-matter bar on second PA’s] stricted petitions. § 2241 over prisoners the federal courts” to limit most which was intended savings clause in Because the at 1340. Id. postconviction clean shot at relief.” to one 2255(e) govern- jurisdictional, - was . Id. appli- of its not waive the issue ment could reasoned in Williams that “the sav- We' n at 1337-40. cability. See id. every that ings simply clause cannot mean to have been appears 2255 motion that Why Explained B. The Court Williams incorrectly subsequent decided based on Apply II Did Not Gilbert may Supreme Court be revisited savings determining whether In did, § 2241 if it through petition; habeas 924(e) claim, applied clause to Williams’s mo- then the bar on second successive II “addressed— noted that Gilbert we first effectively be written out of tions would holding limited its to—cir- explicitly ” Id. “Yet the same the statute.... where a federal cumstances token, the circumstances delineated misapplication sought potential to attack 2255(h)(1) (2) cannot be [AEDPA’s] that resulted Sentencing Guidelines instances 'in which sentence, but one that re- higher in a true, remedy inadequate; that were if statutory maximum.” mained within that it would be the clause then “expressly II reserved Id. at 1341. Gilbert meaningless.” at 1342- was rendered savings clause issue of whether the added). that a (emphasis We stated claim,” species of applied [Williams’s] “in interpreted such statute should be is, applica- claims that an erroneous mere way part of it becomes anj a sentence above increased tion surpltisage.” Id. at 1343. penalty. Id. We Wofford, not concluded that Gilbert then The Williams Court observed Wof- II, attempt pass was “fatal to Williams’s dicta, kinds two different ford, described clause.” Id. through challenges which cov- conceivably apply that are not and the Tension Between C. Wofford 2255(h) in AEDPA. Id. As ered 2255(h) above, two circumstances these discussed stated that the this Court retroactively-applicable when a are: approved Seventh Wofford Court’s decision establishes approach Davenport because that Circuit’s a “nonexis- convicted of petitioner and harmonized two serious “addressed fore- squarely and circuit law offense,” tent in some tension with one concerns that are raising that petitioner from closed hand, the one “the es- another.” Id. On “trial, first appeal, or [direct] claim at give corpus function of habeas is to sential motion”; § when “funda- to ob- opportunity a reasonable occurred, sentencing” mental defect judicial determination of tain a reliable “opportu- no and, had again, petitioner of his conviction and legality fundamental judicial correction of nity to obtain sentence, necessary apply it be added) (emphasis Id. defect earlier.” clause to some claims inade- savings 1244) (inter- Wofford, 177 F.3d at (quoting § in a first 2255 motion quately addressed omitted). marks quotation nal satisfy the Constitution’s Sus- in order to circumstances, two Referring to these (internal quotation Id. pension Clause.” “This inter- stated: omitted). the Williams Court alteration On marks and harmonizes savings clause hand, ap- pretation of “letting clause other with the bar on [the clause] second clause to have his claim reevaluated still or motions [in successive while AEDPA] again light Supreme of novel Court avoiding questions also constitutional un- precedent.” Id. We reiterated what Suspension der the Clause.” Id. § makes the 2255 proceeding inadequate is when precedent “erroneous circuit This Court in fore Williams concluded that petitioner’s] trial, decision closed argument” [the “establishes two nec- Wofford essary although it does not go direct appeal, § or in his pro first conditions— so far as holding them to be sufficient—for ceeding. Id. claim pass muster under Similar analysis, to the Williams we ob- “First, clause.” Id. the claim serve that simply because a defendant must be upon based a retroactively appli- procedural faces a bar his first Supreme cable Court decision.” Id. Sec- motion—such as a period limitations ond, “the Court decision must procedural default —this also does not ren- have overturned a precedent circuit der the first 2255 motion inadequate or squarely resolved the claim so that Otherwise, ineffective. a defendant could petitioner genuine had no opportunity to 924(e) sit on his claim at trial and direct trial, raise it at appeal, or in his first appeal, procedurally have it barred in a added).13 2255 motion.” Id. (emphasis motion, but much later raise it This explained why, Williams in a 2241 petition through condition, under the second the savings portal. What makes the proceed- requires a prisoner’s 2241 claim ing “inadequate or peti- ineffective” for to have squarely been by prior foreclosed tioner is that he “genuine had no Circuit precedent trial, at the time of his opportunity” bring his claim appeal, direct and first 2255 motion. Id. because precedent Circuit squarely fore- 1347. We stated if an issue had closed that throughout trial, claim di- not been against prisoner’s decided posi- rect appeal, and first 2255 motion. See by prior tion precedent, then his first Williams, 713 F.3d at § 2255 motion “would have been an ade- quate procedure for testing his claim.” Id. D. Circuit Precedent Did Not Fore- “The courts would have heard the claim Burglary close Williams’s Claim merits, and decided its unlike in the case Williams, In we concluded that where Williams precedent adverse already existed could not “show that thus stare decisis this Circuit’s would make un- law us (internal willing to listen to him.” foreclosed him raising objection from an quotation omitted). marks and ellipses the treatment of his two Florida burglary convictions [under Fla. Stat. as vio- 810.02] cautioned, however, lent felonies under the ACCA.” Id. at that an incorrect decision :ón a non-fore 1343^44. During Williams’s “direct and closed claim does not render a proceeding collateral attacks” from 1998 to no inadequate or ineffective. Id. at 1348. Eleventh We Circuit explained that, “squarely held “simply a pro because cedurally burglary that adequate dwelling, of a may get test as defined in the an swer wrong 810.02, ... cannot mean Fla. Stat. peti that a was a felony violent for tioner is entitled to utilize ACCA purposes.” Id. at 1344. was “[I]t footnote, 13. emphasized In a again we during Otherwise, that proceedings. his earlier petitioner "the point then-binding must nothing preventing there was him from rais- precedent, circuit subsequently by ing overruled appeal his claim on direct or in his first Court, the Supreme that barred his claim 2255 motion.” Id. at 1344 n.4. abrogate “did not all of this tion” and whether in this Circuit question open an violent-felony jurispru- categorically pre-Begay constitute Court’s might § 810.02 (2) re- dence,” the so-called felony ... under would not have neces- Begay violent 924(e)(2)(B)(ii).” ... [in] clause any precedent sidual sarily abrogated Circuit n “Only after both Williams’s Id. at 1345. burglary statute holding that Florida’s attack did and his collateral appeal (3) direct event, and, in felony; was a violent of a burglary that decide” this Court precedent Begay for “there was no circuit as a qualified law under Florida dwelling first bust” at the time Williams’s in the last clause felony under violent at ended Id. proceeding 924(e)(2)(B)(ii). Id. added). (emphasis “no that Court concluded The Williams reasons, all of these we determined For during the books precedent on Circuit 2255 motion was that ‘Williams’s his attack foreclosed collateral Williams’s or ineffective to test the ‘inadequate motion his ” argument and rendered statutory penal- legality’ of his increased (em- of his clainis.” Id. an test ineffective (quoting Id. ties added). differently, “there Stated phasis 2255(e)). time of at the precedent no adverse have motion that would '2255 Williams’s Miscarriage Did Not E. Williams Show his claim.” unwilling to listen to made us of Justice if initial Even Williams’s Id. at 1347. argument rejected Williams’s We also in the proceeding had resulted por open could clause that he answer, dispositive “not wrong this was alternative, miscarriage-of-jus using an tal Williams now question of whether standard set forth Davis United tice savings clause.” through the pursue relief States, 333,346-47, dispositive is that is “[W]hat Id. at 1348. that, (holding L.Ed.2d at the time not foreclosed his claim was that later establishes precedent where a Eleventh Circuit binding punished convicted and prisoner was Id. abrogated.” Begay overruled law does not make “for an act that rejected petitioner’s we criminal,” may seek collateral relief he “ law- Begay as the ‘circuit attempt to use losing the despite § 2255 motion his first retroactively busting, applicable Williams, 713 appeal). on direct issue ” decision’ demanded Wofford. First, reasoned at 1345. Begay explained at 1346. We Id. a “nonexis convicted of was not Williams busting” in the “circuit-law be offense,” sense tent Wofford’s context, find that “we must asserting that term, “not because he was specifically precedent, circuit overturned pos of either his ‘actually innocent’ he is now as- the claim Williams addressing underly offense or his session of a.firearm petition] namely, § 2241 serts his [in — offenses, nor could he.” Id. burglary is burglary statute] Fla. 810.02 [the Stat. only legal asserting is 1345-46. “[H]e felony purposes.” for ACCA not a violent convictions burglary innocence: (internal added) quo- (emphasis Id. at 1347 violent considered not have been should omitted). marks tation at 1346. under the ACCA.” felonies law-busting” not “circuit Begay was that Davis Second, we said in Williams (1) Begay case because Williams’s issue: whether “a different involved framework for de- analytical “changed re- ‘unsuccessfully litigated on direct claim given state offense termining whether a at- on collateral could be ‘asserted abstrac- view1 felony high at a level of a violent ” Davis, (2) (quoting 924(a); § tack.’ Id. U.S. at in subsequent to his (ellipses omitted and § proceeding, first Davis, adopted)). alteration the Su- in Begay, by Court’s decision as extended preme precedent Court held “where a Bryant’s prior distinct convic- later establishes was con- tion, precedent overturned our Circuit punished victed and ‘for an act that the 924(e) squarely Bryant’s § had foreclosed criminal,’ may law does not make he seek (3) claim; the new rule in announced Be- § collateral relief his 2255 motion gay applies retroactively on collateral re- despite losing appeal.” the issue on direct (4) view; as a result of Begay’s new rule Davis, 346-47, (quoting Id. 417 U.S. at retroactive, being Bryant’s current sen- 2305). But, “Davis did not ad- tence 10-year statutory exceeds the maxi- dress whether the permits by 924(a); § mum Congress authorized effectively what is a second or successive (5) 2255(e) § clause in motion miscarriage justice under the pure § reaches his 924(e)-Begay error standard.” Id. illegal claim of detention above the statuto- The Williams Court concluded that the 924(a). ry § maximum penalty in miscarriage-of-justice standard in Davis explain We now why Bryant has satis- inapplicable was sentencing Williams’s fied each of requirements. these claim concerning the savings clause. 924(e) § IX. BRYANT’S CLAIM WOFFORD,

VIII. SYNTHESIS OF A. Foreclosure II, Precedent GILBERT WILLIAMS & Circuit requirement, As to the first Wofford, II, Gilbert guide Williams Bryant has carried his us on what burden to show terms 2255(e)’s 924(e) § § that his specific claim in clause mean and how his 2255(e) § to read in way petition squarely does not was foreclosed 2255(h)’s or eviscerate undermine binding re- precedent Circuit throughout his strictions on second or successive appeal direct motions but also meaning affords some and first proceeding in 2005. the savings clause. time, Throughout that law in this Cir squarely cuit held that a concealed-firearm prior §

To show his 2255 motion was offense under Fla. Stat. 790.01 was a “inadequate or ineffective to legal- test the felony” Hall, “violent See ity detention,” Bryant must establish Williams, 77 F.3d at 401.14 As stated in throughout his sentencing, direct what makes a 2255 inadequate motion appeal, and first 2255 proceeding, our ineffective is when prec Circuit’s “erroneous circuit binding precedent specifically had edent Bryant’s petitioner’s] addressed foreclosed prior argu [the distinct state 924(e) conviction that ment.” triggered 713 F.3d at and had 1348. Be squarely Bryant’s foreclosed cause our Circuit in Hall claim that he erroneously squarely sentenced foreclosed 10-year claim, above the he had “genuine” procedural no op- record, Throughout misdemeanor, as well "weapon” merely as in our cealed law, relevant case carrying terms "concealed while a concealed “firearm” is a weapon" and “concealed third-degree felony. 790.01(1)- firearm” are used Fla. Stat. interchangeably. (2). PSI, According term "concealed fire- to the indictment and the arm” is more appropriate, carrying however. Under was convicted of a concealed statute, pertinent carrying Florida a con- firearm. n felony. violent predicate as a qualify con- er his Florida whether to test portunity felony” analysis, Circuit was a “violent id. Under Williams’s crime See cealed-firearm predicate convic- “squarely used as foreclose” be still precedent that could would statutory maximum his to increase tion claim unless any Begay-based (emphasis See id. holding was extended to Begay’s until that, added). Be- us before tells Williams involving specific pri- situation a discrete unwill- make us decisis would gay, “stare essentially Begay conviction.15 or state at 1347 him.” See id. ... to listen to ing for legal foundation the basic provided omitted). (internal marks quotation sentencing challenge based raising a new interpretation of Supreme Court’s on the Circuit-Busting Effect Begay’s B. 924(e)(2)(B)(ii). §of language requirement, the second As to in petitioner Unlike Begay, that Bryant has established ex has al- shown that our Court our has Canty, busted by Archer tended Begay’s holding his to his dis- ready in that had foreclosed extended Hall precedent conviction, wit, concealed- his about Florida prior claim tinct state in firearm conviction. conviction 790.01 concealed-firearm Archer, In this Court concluded Florida. in this recognize that Court We a concealed-firearm of- Begay that under “is not circuit Begay that stated Williams of violence” under was a “crime fense sense busting in law Wofford’s Archer, 531 F.3d at guidelines. See in Be- Court Supreme term” because States v. Subsequently, United analytical only “changed the had gay (11th Cir.2009), 1251, 1254 Canty, 570 F.3d giv- whether a determining for framework felony expressly at a the defendant appeal, is a on direct state offense violent en (and by crafting its acknowl- government abstraction high argued level of violent, Archer, aggressive’ test.” that, ‘purposeful, Begay after edged) explained The Williams Court Id. a concealed carrying for Florida conviction abrogated “all of Begay had not as a not be treated firearm should felony jurispru- e-Begay violent pr Coürt’s Canty, felony. After review violent it dence,” specifically, and as to Williams “carrying a concealed held that agreed and Begay would “not at all clear was felony be a violent weapon is not hold- precedent circuit abrogated have to enhance a conviction predicate as a used felo- [burglary] was a violent 810.02 924(e)].” [§ defendant’s words, Begay’s abstract ny.” Id. other at 1255. 924(e)’s resid- statutory interpretation mention Canty expressly did not While in the context of its review ual clause Hall, Canty’s holding our 1996 decision not neces- DUI statute did New Mexico’s (cid:127) of- Florida’s concealed-firearm regarding prior distinct sarily that Williams’s dictate precedent that our directly implies long- no fense burglary conviction could Florida Canty-like subsequent deci- that a Supreme dent such when the Court 15. We note circuit-busting law, required express the are bound sion new rules of courts announces We Supreme decision. Court’s deci- effect of the date of the those decisions from case, decide, However, purposes of this Supreme Court’s sion. because pronounced Begay DUI-related rule clearly abrogate all Begay did not decision in of- concealed-firearm juris- unrelated to the e-Begay felony was so pr violent of this Court’s (or the this Court a decision of fense here that the case wherein prudence, we do not decide Court) required to show Supreme clear- by the a rule articulated in Hall. our prece- decision busted prior ly or undermines our overrules 1276 point added)

Hall was undermined to the of abro- crimes.” (emphasis (quoting gation by Begay and Archer. Sykes, at -, 2273). 564 U.S. 131 S.Ct. at Sykes Begay’s reserved “purposeful, vio showing In addition Archer and lent, aggressive” and inquiry for crimes Hall, Canty precedent our in busted with a mens rea liability, of strict negli Bryant “busting” has also shown that this gence, or Sykes, recklessness. trial, 564 U.S. at Bryant’s did not occur until after -, 2275-76; 131 appeal, § and initial S.Ct. at proceed- direct 2255 United States ings Chitwood, Begay may had ended. While have 979 Cir. 2012) undermined the test we had used to evalu- (“Sykes makes clear that Begay’s ate specific whether a state conviction violent, ‘purposeful, aggressive’ analy qualified as a violent felony under sis does not apply to offenses that are not 924(e), § precedent squarely Circuit still liability, strict negligence, or recklessness Bryant’s § foreclosed current claim crimes----”). Sykes, Supreme applied until we then princi- those abstract Court concluded that intentional vehicular ples Begay from specifically to Florida’s flight under Indiana law was a “violent in concealed-firearm offense Archer and 924(e)(2)(B)(ii). felony” Sykes, Thus, Canty. the issuance of our decisions at -, 564 U.S. S.Ct. in Canty Archer and mark correct Unlike intentional flight, carry- vehicle point which current concealed firearm under Florida law claim longer “squarely was no foreclosed” is akin strict-liability and, to a crime precedent, required Circuit therefore, continues to fall under the “pur- 2255(e)’s clause, and our Hall violent, poseful, aggressive” frame- was busted.16 precedent work Begay. See Dorelus v. announced moving Before on and for completeness, Florida, (Fla.1999) 747 So.2d we add that recent (“[T]he specific intent of the defendant to decision in Sykes States, v. United weapon conceal the is not an element of U.S. -, 180 L.Ed.2d 60 crime....”); [Fla. Stat. 790.01] see (2011)does not affect our holdings in Arch Archer, (“[The] also 531 F.3d at 1351 lack er in Canty 2008 and regarding required specific intent makes carrying Florida’s concealed-firearm offense. weapon concealed [under Fla. Stat. Sykes “substantially circumscribed the more 790.01] similar to drunk driv- Begay reach of so that its similar-in-kind ...”). Thus, ing. Sykes did not undermine requirement no longer applies to intention Archer, Begay, Canty they insofar as al crimes like Fla. Stat. 810.02” (burgla apply to Florida’s concealed-firearm of- ry). 713 F.3d at 1347 n.6. For fense. crimes, intentional inquiry central un 924(e)(2)(B)(ii) der is “whether the of Begay Applies Retroactively C.

fense ‘presents a potential serious risk of physical injury to comparable another’ .As to the third requirement, posed by the risk the ACCA’s enumerated Bryant has established that the Supreme point something 16i We out expressly are We have no occasion to address or decide deciding today. Bryant was sentenced in scenario, specific issues to another where the Florida, Tampa Middle District of divi- Circuit, petition § 2241 is filed in this but the sion, properly petition filed his petitioner originally was sentenced in district, his incarceration the Middle District another circuit under that circuit's law and Florida, Ocala division. This Circuit's his first 2255 motion would thus have been precedent governed sentence, Bryant's initial filed in another circuit. motions, petition. and his criminal or the law does not make applies retroac- decision Court’s faces impose Hall cannot Although punishment our the law tively. busted, rely cannot still at 2522- him.'' Id. at upon collateral review rule Begay's, added) (internal new (emphasis quotation 23 Begay applies rule announced unless the omitted). marks suggested, previously retroactively. We A not sub procedural, new rule is decision Begay that the tangentially, stantive, “regulate[s] only if it the manner to cases on collateral retroactively apply culpabili determining the defendant’s motion of post-conviction a first review 353, 124 ty.” Id. at S.Ct. at 2523. Such context; however, held so we have never not a class of procedural produce rules “do Tucker, 704 F.3d See Zack v. expressly. the law does persons convicted of conduct Cir.) banc) (11th (en 917, (discussing 925 criminal, iperely 2244(d)(1) not make but raise the in a of limitations statute cert, (U.S. use case), filed, possibility that someone convicted with petition 2254 for 12-10693).17 2013) (No. now 7, procedure might We invalidated have June Begay announced in 352, that the new rule hold 124 acquitted been otherwise.” Id. at of a first retroactively purposes for applies rules will procedural at 2523. New S.Ct. § 2241 petition § 2255 motion and they are apply retroactively unless bring Bryant seeks im procedure rules of criminal “watershed fairness and ac plicating the fundamental an Supreme Court When curacy proceeding.” of the criminal rule, con person new “a whose nounces a (internal omitted); quotation marks see may not benefit already is final viction Lane, 288, 311, 109 Teague v. 489 U.S. also in a habeas or similar from the decision (1989) 1060, 1076, L.Ed.2d 334 S.Ct. States, 568 v. United proceeding,” Chaidez (plurality opinion). 1103, 1107, U.S. -, -, (2013), exceptions. two L.Ed.2d 149 with rule is procedural “That a new First, generally rules substantive “[n]ew sense is not fundamental in some abstract review, retroactively” collateral apply must be one without enough; the rule scope that narrow the including “decisions of an accurate convic which the likelihood by interpreting its of a criminal statute Schriro, seriously tion is diminished.” “constitutional determinations terms” and (internal 124 S.Ct. at 2523 U.S. persons particular conduct or place that omitted). “This class of quotation marks beyond the State’s covered the statute id., narrow,” so much so extremely is rules Summerlin, v. punish.” Schriro power Court years ago Supreme that nine 348, 351-52, 124 S.Ct. 542 U.S. any more “wa unlikely it was stated (2004). The 159 L.Ed.2d emerge procedural rules would tershed” substantive explained that such Court id.; future, v. see Howard United they retroactively “because apply rules Cir.2004) (11th States, risk that necessarily carry significant (“[T]he tight is so Teague exception an act that second convicted of defendant stands omitted) (internal that, citations Spencer 121 F.3d at 1096 recognize v. United 17. We 383, 389, Bohlen, Cir.2013), States, (citing Caspari this 727 F.3d 1076 948, 953, L.Ed.2d 236 retroactively applied Begay to a first not, ("[A] may, decline but need government's federal court § 2255 motion based on the nonretroactivity analysis] concession, Teague[‘s if agreed apply stating: government "The it.”)). argue [government] does not argument Begay applies retroac- at oral case, of the retroac- we rule on the merits Given that tively, as it has in other cases. concession, tivity Begay Spencer, issue. apply here.” that, very squeeze few new rules will ever criminal offense” and “[w]hen it.”). through narrowed, elements of a crime are change prohibit any serves to punishment Begay new rule announced in conduct”; but nonetheless procedural substantive rather than be- altered the maximum amount of scope” cause it “narrow[ed] punishment impose that the law can for a terms,” “by interpreting specifically, its crime, 922(g) Begay “prohibits and thus Schriro, felony.” the term “violent See punishment”). some of that 351-52, 124 542 U.S. at S.Ct. at 2522. As above, Begay held discussed as to Before leaving retroactivity, one or liability, negligence, strict recklessness clarification is Supreme needed. The crimes, 924(e)(2)(B)(ii) § clause in last jurisprudence Court’s above about retro- similar, applies only “roughly to crimes in activity generally quite is different from degree kind as in of posed,” well as risk stricter, statutory retroactivity re offenses enumerated quirements 2255(h), § in 28 U.S.C. which 924(e)(2)(B)(ii) arson, § (burglary, extor- govern second or successive 2255 mo tion, involving explo- or crimes the use of qualify tions. To as a retroactive “new sives). 142-43, Begay, 553 at U.S. 128 2255(h), rule of constitutional law” under (internal at quotation S.Ct. 1584-85 marks Supreme “the Court itself must make the omitted). Begay thus narrowed the class Anderson, rule retroactive.” In re 396 924(e) people eligible who are for the (11th 1336, Cir.2005). F.3d is “[I]t statutory increased maximum of life for-a enough not may this Court retroac result, § 922(g) crime. significant As tively apply a new rule of constitutional defendants, risk exists that some like law or hold that a new rule of constitution Bryant, who were sentenced before Begay al law satisfies the criteria for retroactive erroneously have received the increased application set forth Supreme penalties under and now are serv- Court....” terms above the otherwise prison ap- The Fifth Circuit in In re con- plicable statutory years— maximum of 10 Bradford Begay cluded that was not retroactive for punishment “a impose” the law cannot 2255(h) purposes Schriro, upon 352, them. because there were See no Court cases “declaring” it to 2522-23. be Bradford, retroactive. In re 660 F.3d (al- Other circuits also have concluded (5th Cir.2011). true, While that is motion) beit in the context of a first the retroactivity issue here is not about a that Begay announced a substantive new second successive motion rule that applies retroactively. See Jones 2255(h). Rather, the issue here is States, v. United 689 F.3d 625-26 Bryant whether can bring peti- Cir.2012) (explaining although Be- tion under Begay and whether gay’s new rule did not alter the underlying applies retroactively §a 2241 petition, crime, elements of the the new rule none- which we conclude it does. theless “involved the substantive construc- tion of a criminal statute” that determined D. Sentence Exceeds Stat- the maximum punishment lawful certain utory Maximum receive) (inter- classes of defendants quotation nal As to the fourth requirement, marks and alteration omit- ted); States, 408, Bryant Welch v. United has established that his (7th Cir.2010) 413-15 (noting that exceeds the Begay authorized maximum “did not narrow of the elements- of a penalty. As a result of the retroactive any objection”); to voice in Government failed our decisions Begay decision Petite, Bryant’s concealed-fire- States v. Canty, see also United Archer and (“The (11th Cir.2013) Fla. Stat. 790.01 gov- arm conviction 1292 n.2 felony” within the definition a “violent first time on ernment cannot offer for the 924(e)(2)(B). Bryant This means sup- appeal predicate a new conviction felonies predicate have the three does not sentence:”), port of an enhanced ACCA cert, maxi- his. to increase required (U.S. 2013) filed, June petition for 924(a)(2) years from mum sentence (No. 12-10831). Therefore, deny 924(e). Bryant’s §in imprisonment life government’s request substitute exceeds his stat- sentence thus 235-month burglary conviction. years for his utory proven has 922(g)(1) offense. X. OF THE SAYINGS SCOPE error,” denominated aptly “pure CLAUSE II. Gilbert the above four Bryant has met Because “statutory leaving the Before Wofford, requirements derived- from Gil- gov the question, we address maximum” II, we now examine the bert Bryant’s prior argument ernment’s fifth which involves the issue requirement conviction could be used as burglary 1988 is, II. That the open left Gilbert whether 924(e) thus predicate felony a third only an actual- savings clause reaches not statutory not exceed the his sentence does claim, Bryant’s but also sentenc- innocence penalty. maximum 924(e)-erroneous that his sen- claim government the disagree because We statutory pen- the maximum tence exceeds burglary issue at the initial waived this 924(a) alty 922(g) §in for his crime. sentencing. sentencing, At the district at three court found that had most A. Other Circuits’ Decisions convictions, which qualifying predicate split and mature circuit deep There is a conviction and were the concealed-firearm savings the clause. The on the reach of in- drug the two convictions listed the rejected possibility Tenth has the Circuit objected government The never dictment. actual- savings-clause relief for" both finding by the district court. De- to that claims, sentencing claims and all innocence repeated opportunities to do so at spite petitioner’s of whether regardless sentencing, government also never precedent foreclosed circuit claim was suggested any point 1988 2255 motion. See at the time of as a burglary conviction could serve (10th Anderson, 578, F.3d Prost v. felony. At no time 924(e)-qualifying Cir.2011) (“The ... relevant metric during Bryant’s proceed- direct criminal challeng petitioner’s argument whether rely ever on the ings government did the could have legality of his detention ing the felony burglary predicate conviction as motion.”), in an initial been tested Canty, 570 purposes. See — denied, U.S. -, 1001, 132 S.Ct. cert. gov- (stating at 1257 while the F.3d (2012). possibil only L.Ed.2d 733 The opportunity to an ernment was “entitled Prost ity open left the Tenth Circuit rulings and seek from offer evidence savings be available is that the of a sentencing support court in 2255(h)’s bar application “when government was “entitled application,” motion for against a second or successive ... it had opportunity, one such seriously would threaten collateral review hear- sentencing at the opportunity un- process 2255 remedial to render ing,” given opportunity, and “when constitutional,” 593, although id. the Circuit has likewise not extend- upon Tenth did not .elaborate what Circuit ed the reach savings clause to those enough would be serious circumstances petitioners challenging only their sen- trigger this concern. tence.”). Second, Fifth, In the Tenth Circuits, prisoners cannot mount a sav- contrast, eight circuits have held de ings-clause challenge erroneous finitively that the clause allows a enhancement, whether above district court to entertain an actual-inno applicable statutory within the otherwise Nash, cence claim.18 See Poindexter v. (2d maximum 372, Cir.2003), penalty. F.3d cert. de nied, 1210, 1486, 540 U.S. 124 S.Ct. Sixth, First, and Ninth ap- Circuits (2004); Dorsainvil, L.Ed.2d 135 In re 119 pear to juris- be line with this Court’s (3d 245, Cir.1997); In re 251-52 (1) prudence. Those circuits have held (4th Jones, 328, Cir.2000); 226 F.3d 333-34 clause is available for States, Reyes-Requena v. United 243 F.3d (2) claims, reject- actual-innocence have (5th 893, Cir.2001); 903-04 United States ed—as this did in Gilbert II —the Cir.2001), Peterman, (6th 458, 249 F.3d possibility that the clause is avail- denied, 1008, 122 rt. 534 U.S. ce 493, able for sentencing alleging claims that the (2001); 151 L.Ed.2d 404 Brown v. district misapplied guidelines court (7th Caraway, 719 F.3d 586-87 Cir. provisions imposed a but within 2013); Ives, Marrero v. penalty, maximum Cir.2012), 1194-95 cert. de have reserved the issue regarding sen- —nied, -, tences above pen- (2013); Smith, L.Ed.2d 206 In re 285 F.3d Marrero, alty. See 682 F.3d at 1194-95 6, (D.C.Cir.2002); 8 see also Trenkler v. (noting that “some courts suggested have Cir.2008), (1st States, 85, United that a petitioner may qualify for the es- denied, 1193, 129 rt. 555 U.S. ce cape hatch if he received sentence for (2009). 1363, 173 L.Ed.2d 623 These cir which he was statutorily ineligible”—in split cuits are sentencing on whether words, beyond other statutory the maxi- may open claims savings-clause portal. mum—but reserving question of Second, Fourth, The Fifth Circuits “whether to exception); endorse” this limit savings the reach of the clause Trenkler, (petitioner’s 536 F.3d at 99 claim circuits, actual-innocence claims. In those was “incompatible engagement with type no sentencing justifies claim sav- savings clause” it “charge because did not ings-clause Poindexter, relief. See beyond statutory [the] sentence is (“The application F.3d at 378 only maximum for the crimes of conviction” or must show that relief procedurally un- innocence); Peterman, assert actual 2255, available under but also must as- (“Courts F.3d have generally de- ”); sert a claim of actual innocence.... collaterally clined to review sentences that (stat- Reyes-Requena, 243 F.3d at 903-04 maximum.”). fall the-statutory within savings clause is available for The Seventh has Circuit taken the most an actual-innocence claim based on a Su- Brown, permissive position. See preme F.3d Court decision that has overturned II, Rejecting circuit this Court’s precedent foreclosing petition- Gilbert claim); Poole, er’s United States v. Seventh Circuit held that “a misapplica- (4th Cir.2008) (“Fourth F.3d 267 n.7 mandatory tion of the career offender respect 18. The circuits differ with to what not address that distinction to resolve But, constitutes actual innocence. we need case. 924(e) felony” the “violent term in non-con- presented cognizable Guideline statutory ... resulted results a sentence above the [that] claim stitutional ‘fun- justice” and thus is “a miscarriage penalty, maximum as shown above. See justifying II, suc- sentencing defect’ damental 640 F.3d at 1319 n.20. For the Gilbert Davenport.” § 2241 relief under reasons, cessive following we now hold that secondary import is 924(e)- Id. at 587. Brown’s Bryant’s pure reaches will consider that the Seventh Circuit also illegal claim of detention above the an errone- savings-clause alleging claims 924(a). §in increased application ous First, we have never doubted that the máximums under least, clause, savings very applies at the has the least devel Eighth Circuit actual-innocence claims due to a conviction savings-clause jurisprudence and has oped Wofford, non-existent offense. See rejected savings affirmed nor neither 1244; II, 177 F.3d at 640 F.3d at Gilbert actual-inno availability clause’s for either 1318-19; Williams, 713 F.3d at 1342-43. Abdullah sentencing cence or claims. See all, savings must apply After clause Hedrick, 960-64 Cir. 2255(h); some claims not covered 2004) (canvassing other circuits’ case law otherwise, clause would be ultimately concluding but that the meaningless.” “rendered See had had an that case “unobstructed 713 F.3d at 1342-43. opportunity” to obtain review procedural Second, plain sup- text of motion), of his claim in his first ports proposition denied, cert. simply clause should not be restricted (2005). 162 L.Ed.2d 902 claims. The actual-innocence review of other circuit’s law shows Our § 2241 prison- makes available to a agree most circuits about actual-innocence er whose first 2255 motion was “inade- (cid:127) to claims but are far from uniform as quate legality or ineffective” to test the pass claims can whether 2255(e) (em- his “detention.” 28 U.S.C. through savings-clause portal. the narrow added). Congress’s use of the term phasis And, guide- not allow even those who do highly significant to the “detention” lines-misapplieation claims within the stat- In scope savings of the clause. other sec- proceed under utory maximum statutes, § tions of 2255 and the related 2255(e) (as IT), § in have we held Gilbert terminology when Congress uses different 2255(e) questions § as to not answered the prisoner’s it to restrict the universe wishes statutory maximum a sentence above the. challenges solely to actual-inno- possible of penalty. We now must do so. claims. cence 2255(e) Why § B. Reaches instance, AEDPA contains two ex- For Statutory-Maximum Claim on second or ceptions prohibition to the § successive 2255 motions. One of those above, all of our

As discussed “newly allows a claim based on exceptions II, point Wofford, cases Gilbert — proven if discovered evidence kept open possibility Williams — whole, as a light viewed in of the evidence savings clause would allow relief by clear would be sufficient to establish type of some limited of a fundamen cases that no reasonable II, convincing evidence sentencing tal defect. Gilbert the movant factfinder would have found that such a “fun hinted “footnote-dicta” 28 U.S.C. guilty sentencing” may poten damental defect in of offense.” 2255(h)(1) added); In re (emphasis § tially application include an erroneous (11th Cir.2003) by the Dean, active to cases on collateral review prisoner’s request Court, a federal un- (rejecting Supreme previously that was § raising 2255(h)(2). 2255 motion second or successive available,” § The 28 U.S.C. § newly- 2255’s sentencing claim because 2255(h), § frame it sim- purpose behind exception “does not discovered evidence kinds, ply, is to maké sure two asserting sentencing er- apply to claims kinds, serious, very only two substantive ror”). restriction on second or AEDPA’s claims will receive review on the merits petitions pris- for state successive prisoner’s regardless posture of the exception. See contains a similar oners 2255(h) focuses on the sub- case. Section 2244(b)(2)(B)(ii) (permitting U.S.C. stantive nature of the claim. where, petition only second or successive 2255(e) a different thrust. fact- Section has among things, other “no reasonable the applicant savings finder would have found clause is concerned not underlying (empha- claim, guilty with substantive basis for the .the offense” added)). The use of the term “deten- sis procedural adequacy but also with the suggests tion” in the clause claim. original review of the spe- Congress intended for least some reason, permits For this clause (other sentencing claims than actu- cies of prisoner’s of “detention” when the review claims) justify savings- al-innocence “inadequate motion clause relief. ineffective” to test those claims. The issue also favors Section 2255’s structure procedural is whether the movant had a savings-clause portal to claims opening the claim in opportunity raise of an erroneous sentence above “adequate an and effective” fashion. This the authorized Court’s decision Williams honored this 924(a). explained As this Court by establishing, distinction as the neces- provides the structure of 2255 if sary not sufficient conditions for receiv- escape pressure two distinct hatches or relief, ing savings-clause prisoner that a (or metaphor valves whatever one wants to must demonstrate that his deploy) that a use to over- squarely claim was foreclosed Circuit bar or successive come the on second trial, precedent at the time of his direct The first is the 2255 motions. appeal, proceeding; or first 2255(e), §in and the is the second Supreme subsequently over- Court or successive mo- right limited for second precedent; ruled that erroneous Circuit 2255(h). tions found in To harmonize ap- and that the decision two, and to ensure that 2255 does plies retroactively on collateral review. Clause, not run Suspension afoul of the we Williams, If is 713 F.3d there interpret clause to cover some savings any sentencing ever to be claim that is 2255(h) not, does and vice claims that enough look serious to warrant second versa. 713 F.3d at 1342-43. See prisoner’s procedural oppor- when the 2255(h) by far the clearer of Section is tunity inadequate for review was or inef- the two sections and offers two kinds of fective, statutory an erroneous claims for which a second or successive maximum claim fits the bill. (1) possible: 2255 motion is a claim of consistently This has drawn a dis- Court newly actual innocence discover- based above the au- tinction between sentences evidence, above, ed 28 U.S.C. as discussed statutory maximum 2255(h)(1); penalty thorized a claim on “a based law, statutory new rule of made retro- those beneath that maximum. constitutional There, II, II. great pains took decision Gilbert rested our this Court In Gilbert holding applied holding large part finality on the inter- clear that its to make AEDPA, erroneously espoused by enhanced under ests which were to sentences strong enough guide- not to sentences to override claims of sentencing guidelines, penalty statutory statutory maximum maximum exceeding lines error within the II, the crime of by Congress for penalty. authorized See Gilbert 640 F.3d at 1309- II, 640 F.3d at conviction. See implicate Gilbert 12. This case does not those n.20, 1295, 1306-07, 1312, 1319 1323. The finality way. concerns the same We are sentence above concern with an erroneous creating apply a rule that “would that the sen statutory maximum is every type [guideline] and kind of en- punishment] tencing [the court “exceeded- hancement, of which there are scores.” v. by legislature.” authorized Jones permitting See id. 1309. Nor are we Thomas, 376,383, 109 491 U.S. S.Ct. repetition inquiry “an endless into facts (1989); see also 105 L.Ed.2d 322 in a vain certi- law search for ultimate DiFrancesco, 449 United States v. U.S. (quoting McCleskey tude.” See id. at 1311 117, 139, 426, 438, 66 L.Ed.2d Zant, 467, 492, v. (1980) (“[A] defendant not receive (1991)) (internal 1469, 113 L.Ed.2d 517 has greater legislature sentence than the omitted). quotation simply marks We are Bushert, authorized.”); United States clause, that recognizing ad- (11th Cir.1993) n.18 2255(h), very dition to contains a narrow (“It jurisdictional is both axiomatic and exception prohibition to AEDPA’s on suc- may not that a court of the United States exception cessive collateral relief—an beyond a crime impose penalty for supported by statutory language statute.”). Thus, by authorized which is 2255(e), and one that we have foreseen serious, constitutional, separa there are preserved since Wofford. tion-of-powers concerns that attach to sen The need to correct sentence above statutory pen maximum tences above the the authorized alty Congress. authorized weighs significantly against finality heavier respect, exceeding a sentence this interests than the need to amend a within- 924(a) authorized maximum'in statutory-maximum simply claim, akin an is more actual-innocence might been lower but for an have erroner every which circuit to have considered the II guidelines application. ous illus- Gilbert clause, Tenth, acknowl- but There, well. we observed point trates edges qualify would to remand case for were we Gilbert’s prisoner who- was convicted clause. resentencing, it was no means clear statute and sentenced under a lesser sentence he would receive de- subsequently that the given that presently serving, than he was punished being cides never his conduct is guidelines longer mandatory. -were no by any congres- held without authorization II, 640 F.3d at 1304-05. We See. Gilbert Similarly, sional when a statute. court, explained that the district on re- § 922(g) convicted of a crime serves more mand, easily give could an above- Gilbert applicable 10-year than the maximum in guidelines sentence based on the 18 U.S.C. 924(a) to an sem- due erroneous 3553(a) If was re- factors.' Gilbert fence, being he too is detained without original 292 months or sentenced to the by any statute. authorization imprisonment, even life his sentence with, dispropor- “would not be unreasonable or today conclusion is consistent Our undermines, at 1305. way our en banc tionate to the crime.” Id. no case, However, say above, contrast in this we can utes. as discussed stark that, remand, certainty with absolute already distinguished has between would, must, and thus the district court mandatory pre-Booker sentencing than give Bryant a lower statutory guidelines penal- maximum Indeed, current term of 235 months. a II, ties. See Gilbert 640 F.3d at 1306-07 years guaranteed lower sentence of 10 (explaining “statutory that a maximum Archer, light Begay, because—in “punishment beyond ceiling sentence” is statutory Canty Bryant’s authorized — no ... may which defendant be [convicted] penalty years, maximum is 10 and there is that, noting sentenced” and where a stat- nothing judge a district court could do to mandatory guideline ute and sentence are vary upwards years. above 10 See inconsistent, guideline[ “the ] [sentence 924(a)(2); see also U.S.S.G. U.S.C. ... statutorily prescribed bend to must] 5Gl.l(a). proven As with cases actual of. other, around”). limits, way not the Be- innocence, finality yield in must interests distinction, of this cause this Court careful- proven cases of current sentences to be ly holding its II cabined Gilbert to sen- statutory above the maximum au- tences that did not the permitted exceed by Congress. thorized Given the above statutory penalty. maximum already-narrowed confines significant There is a distinction be- clause, undermining there is little of finali- tween a sentence that exceeds the statuto- ty grant prisoners interests to relief to 924(a) serving illegal ry who are sentences above the maximum sentence stated statutory penalty. authorized maximum that, although and a sentence enhanced application mandatory sentencing guide- XI. AMICUS’S ARGUMENTS lines, permitted remains within the statu- government The does not contest that tory penalty. maximum Even the man- applies clause when and if era, datory-guidelines a sentencing judge petitioner’s Circuit foreclosed a by the upper-limit was bound absolute of a requisite claim that he lacks the three statutorily penalty. authorized maximum predicate petitioner felonies but the has Booker, Accord proven now that his sentence ex- (cid:127) (noting sentencing where a statutory ceeds the maximum penalty, as judge only by “is statutory bound max- Rather, described above. government imum!,] (cid:127) (cid:127) (cid:127) Apprendi prob- there no [is] wants remand to substitute lem”). recognize Congress We made conviction, burglary which we denied for pre-B.ooker sentencing guidelines man- the reasons stated earlier. Amicus coun- datory by congressional statute. See 18 sel appointed argue was thus to brief and 3553(b)(1). guidelines, U.S.C. even on appeal ap- whether the override, mandatory, if do not and indeed plies when a that his establishes to, yield congressionally-enacted must stat- sentence exceeds the maximum utory penalties. maximum See U.S.S.G. penalty. While the amicus offers four 5Gl.l(a). well-developed counterarguments, none of ' following example: per- - Consider the persuade them us. robbery

son convicted of federal bank Mandatory A. Guidelines Versus Statu- years. faces of 20 tory Máximums 2113(a). Even under the See U.S.C. mandatory guidelines sentencing old First, the amicus asserts that there is no scheme, prisoner’s guidelines range if the meaningful mandatory difference between sentencing guidelines stat- with an erroneous career-offender en- years, only hancement exceeded that there is statutory one maximum years pursu- would still be sentenced to 20 for a 922(g) crime: imprison life 2113(a). ant to U.S.C. See U.S.S.G. amicus, ment. According to the because 5Gl.l(a) (2001) (“Where statutorily the statutory maximum penalty for a authorized maximum sentence is than less § 922(g) crime always life imprison applicable the minimum of the guideline ment, there sentencing was no error in range, statutorily authorized maximum Bryant’s case because his 235-month sen sentence.”); sentence shall be the guideline tence was less than life in prison. In (“To II, see also Gilbert 640 F.3d at 1307 reaching- conclusion, its the amicus relies the extent of inconsistency, guide- on States, Almendarez-Torres v. United statutorily lines would have to bend to 523 U.S. 140 L.Ed.2d limits, prescribed not way the other 350 (1998). around.”). Almendarez-Torres, the Supreme Statutory penalties maximum take pre- that, Court noted 924(e), statutes like cedence over sentences set forth recidivism is not an element of the offense guidelines. sentencing This was true even “sentencing but is a factor.” See 523 U.S. sentencing guidelines when the were man- at it Because is a datory. statutory A maximum penalty is factor, sentencing argues the amicus equal footing guidelines with the the recidivism enhancement contained bedrock, but are more fundamental fea- does not separate define a crime. tures of sentences. However, This is true. the amicus asks this Court to read into the Almendarez- B. Actual-Innocence Claims opinion Torres what- is not if there: an Second, the amicus asserts that thére is § 922(g) unenhanced conviction and an en- a critical difference between actual inno- § 922(g) hanced conviction have the same cence and sentencing error. The amicus elements, they offense must also have the suggest those who movants are same maximum penalty of life “innocent of an actual eligible crime” are imprisonment. for the savings clause relief. The problem with the argu- amicus’s It is true that actually one cannot be ment is that language 924 con- innocent sentencing of a enhancement. a separate tains distinct II, However, Gilbert 640 F.3d at 1320. 924(a)(2) maximum penalty. Section

savings clause is not limited to actual- states that the maximum sentence for a innocence claims. The ap- clause plies 922(g) violation of years. where a is 10 See Tur- motion was “inade- ner, (“Had quate or ineffective to legality test the he not been detention.” subject [one’s] See enhancement, U.S.C. to the ACCA [the above, As discussed the use of prisoner’s] maximum sentence would have the term “detention” indicates strongly years in prison.”) (citing been that the clause covers more than 924(a)(2)). A sentencing judge cannot actual-innocence claims. sentence above this statutorily-imposed maximum threshold sentencing unless the

Anticipating conclusion, the amicus factors contained in Only exist. if asserts even if sentencing such factors exist claims, statuto- covers some it does not ry penalty imprisonment. allow relief increased to -life here because exist, does not If applicable statutory exceed the such factors do not the maximum penalty. argues statutory penalty The amicus' clearly remains —as is 924(a)(2) above, however, imprison- As years § discussed stated in —10 2255(e) is say only thus cannot there § has ment. We a different thrust than life im- statutory of one 2255(h); solely § its is not the concern prisonment. of the claim substantive seriousness but procedural adequacy th'e and effective also position the amicus’s the of

Adoption § prisoner’s original of the hear ness effectively case would limit the of this facts 2255(e) savings merely clause to actual-inno- on that If claim. reach the of the elements of under- claims policy cence recapitulated the same concerns subsequent If offense. Su- lying criminal 2255(h), the would be surplusage former establishes that preme precedent Court in the 2255 statute. It is a fundamental prove had to an additional government the statutory interpretation canon of that this pris- the to convict and sentence element every part should of Court read the stat not oner, fairly claim would prisoner’s the meaning. ute to have See United States sentencing as a claim. be characterized 1284, 1287(11th Canals-Jimenez, F.2d proven, not been the an element has When Cir.1991). prisoner has a basis to attack both his sentence, just his conviction and the Tenth D. Circuit Rule posi- fallback sentence. amicus briefs Fourth, the amicus asserts that this essentially just offering is another tion Court should follow the rule articulated claim as species of actual-innocence Prost, 636 the Tenth Circuit. See kind of example sentencing sole Prost, In prisoner sought a federal savings-clause relief. claim that warrants

bring claiming 2241 petition statutory Statutory C. Versus Constitutional innocence on a new based Court

Claims interpretation money laundering of a stat- ute. Prior 636 F.3d at 579-80. to the Third, amicus brief warns allow- 924(e) Supreme ruling prompted ing the correction erroneous via the applications petitioner clause would Prost 2241 petition, to file his “privilege!] statutory .error there no adverse circuit claims”, over meritorious constitutional Tenth squarely Circuit that foreclosed thereby greater “frustrate AEDPA’s toler- claim, statutory his but peti- innocence argument the latter.” This ance for statutory tioner did not assert innocence face, but its key sounds attractive its his first 2255 motion. See id. at think underlying assumption is —which 588-90. wrong merely clause —is The Tenth Circuit concluded that an ini- imposed limitations recapitulates same tial not “inadequate motion is § 2255. other sections of other legality peti- ineffective test the [a 2255(h) words, logic the amicus’s petitioner’s argu- detention” if “a tioner’s] treats a small set of constitutional challenging legality ment deten- enough require a sec- claims as serious could tion have been tested initial [the] thus, look, and, ond must do the (internal § 2255 motion.” at 584 quo- reasoning, same. the sav- Under amicus’s omitted). tation Based on con- marks §in cannot allow con- ings clause clusion, the Tenth held that Circuit claims, sideration of mere be- petitioner’s barred cause such- claims never be could more petition § 2241 he have because could than myriad serious constitutional raised his innocence claim his claims that will not muster under pass 2255(h)(2). 2255 motion. Id. at 589. The

1287 alternatively had any Tenth Circuit determined opportunity regardless of how — that, if precedent squarely even circuit had long-standing prior or entrenched circuit petitioner’s the claim at foreclosed the precedent was—to raise his claim in an motion, § § time of his first 2255 earlier proceeding. The Tenth Circuit’s petition still bar his 2241 would because conclusion in Prost opportunity challenged prec- he could have that circuit “adequate relief is and effective” to test edent in first 2255 his motion. Id. at legality the of one’s detention is inconsis- 590-93. tent with principles the underlying our matter, preliminary Bryant As a and the precedent. Circuit See petitioner Prost are on a footing. different (stating that what makes the precedent Our Circuit’s squarely foreclos- § 2255 proceeding inadequate or ineffec- Bryant’s ed claim until after he filed his tive is when “erroneous circuit precedent contrast, By first 2255 motion. foreclosed petitioner’s] [the argument”). petitioner’s Prost claim was not foreclosed We do not adopt the Tenth Circuit’s alter- precedent. circuit The facts in Prost Prost, native conclusion from but follow are more similar to the facts Williams analytical requirements in Williams they Bryant’s than are to case. The Tenth Bryant which has satisfied. Circuit Prost and this Court in Williams reached holding consistent results in XII. SECTION HABEAS savings clause does not reach claims REMEDY that could have pro- been raised earlier Bryant Given has established that ceedings. erroneously his sentence exceeds the stat broadly amicus asks us to look more utory penalty, maximum savings opinion at the Prost adopt the Tenth permits petition his proceed, Circuit’s alternative conclusion that even if he prevail claim, should on his our circuit squarely had foreclosed final task is to determine what his petitioner’s claim at the time of his relief should inbe the context of this case. motion, clause still Bryant’s pro initial appeal se brief on However, would bar 2241 petition. “respectfully requests that his sentence be the Tenth Circuit’s rationale in por- vacated and his case remanded for resen- tion opinion of the Prost is somewhat in tencing without the unlawful Armed Ca- tension precedent. with Court’s As reer Criminal Enhancement.” His coun- above, previously discussed this Court es- requests seled brief this Court to “vacate “pass tablished for a claim to muster the district judgment court’s and remand clause,” case to the district [his] court with instruc- Court decision must have overturned “cir- grant tions to corpus petition.” habeas cuit precedent squarely resolved the It also states that “should have petitioner claim so that the genuine had no been sentenced to maximum of ten opportunity trial, to raise it at on appeal, course, years.” Of the government asks in his first 2255 motion.” See dismissal us to affirm the Bryant’s Williams, 713 F.3d at (citing Wofford, § 2241 petition by letting government 1236) added). (emphasis Our Bryant’s burglary substitute conviction on precedent suggests Circuit prisoner that a remand, appeal or on but already we have genuine must have had a opportunity to denied that request. raise his claim in an proceeding. earlier Under the Tenth ruling, fashioning Circuit’s relief in a case savings clause does not if apply brought clause, under the we must case, Indeed, § 2241 his sen be- “history purpose of and

consider pen exceeds the tence relationship its hind error, 924(e)-Begay alty pure due to §in which remedy,” codified habeas required to correct that statuto all Wofford, See 177 in we discussed Wofford. statutory to the ry error is a reduction channels a 2255 at 1238-39. Section F.3d years by 10 the district court maximum of validity on the attack prisoner’s federal incarcerated. See the defendant is where sentencing court the initial sentence to 924(a)(2); § see also U.S.S.G. 18 U.S.C. a sen- if the defendant establishes so 5Gl.l(a) statutory § if the (providing that by error, can be resentenced he tencing guide is less than the maximum sentence sentencing the records the court where con range, statutory the maximum lines located. 28 U.S.C. are and witnesses trols). § for the There is no need 2255(a); Wofford, 177 F.3d at 1239 § see sentencing court to hold court or the § behind 2255’s enact- (describing purpose further resentencing hearing or to deter “serious administrative ment as to avoid sentencing range appropriate mine the courts encountered habeas problems” statutory penalty. within the maximum prisons of federal due to an jurisdiction the all, any challenge § 2241 to a sen After ac- corpus number of habeas “inordinate authorized already that is below the tence facts, far from the scene” of the tions open maximum statutory could witnesses, and the records of the sentenc- II, 640 F.3d portal. See Gilbert court). enactment, After 2255’s ing And, § 2241 Bryant in a petition at 1323. must be petitions, § 2241 habeas which any misapplication attack is not able to district, gen- are filed the incarceration statutory maxi guidelines below the challenges to execution erally reserved Thus, Bryant’s allowing mum. See id.19 confinement, or the nature of sentence above-statutory-maximum proceed claim to validity of the sentence itself or the not the 2255(e)’s petition through in a Antonelli v. War- of confinement. See fact § 2241 allowing savings clause (11th Cir.2008); den, 1348, 1352 542 F.3d Bryant’s to the court to reduce sentence Plain, v. 748 F.2d States United not under do Cir.1984). n.3 built mine the collateral-relief structure §in 2255. Congress Congress did channel collater- Although validity of a sentence to al attacks on PARTIAL XIII. RESPONSE TO courts, Congress provided still DISSENT a federal re- exception: one Although grants sig- the Court or 2241 to attack his conviction sort in this case and re- nificant habeas relief if he satisfies the clause. sentence his 235-month sentence to 120 duces 2255(e). Thus, con- See 28 U.S.C. we months, partial dissent takes this case allowing clude that habeas opportunity again as an voice dissatis- court to reduce itself precedent. binding faction with our 10-year statutory maxi- immediately to purpose dissenting colleague’s arguments mum does not thwart Our guidelines-caleulation errors in 2255. about division of labor earlier, (due points), yielding guide- Bryant's advisory VI to 18 19. As recounted guidelines range imprison- to 293 months' im- range was 235 to 188 months’ of 151 lines ment, prisonment. Even without the 4B1.4 in- 10-year maxi- also above the level, Bryant's offense crease his offense penalty. mum history category level was 29 and his criminal granting ry a full and unrestricted resentenc- claim at the time sentencing, direct are, appeal, and a ing part, arguments restatements of 2255 proceeding, then remedy 2255 was not dissenting opinion “inadequate from her earlier 'in Gil n or (Gilbert ineffective” to II), raise claim. bert v. States United F.3d (en n.4; (11th Cir.2011) F.3d at 1344 & banc), Gilbert cert. de — II, 1319; Scott, see nied, -, Wofford (11th Cir.1999). 1244-45 (2012). L.Ed.2d 743 Rather than address why, This is to meet “inadequate dissent, partial simply respond 2255(e), ineffective” test the Williams majority opinion our follows the legal required Court the defendant to show that principles binding precedent our in Gil genuine he had “no opportunity to raise II, bert and we adopt here Gilbert II’s trial, at appeal, [his claim] on or in his first response to type dissenting the same § 2255 motion.” 713 F.3d at 1343. The arguments made there. See 640 F.3d at Williams explained: “if we follow 1313-18. reasoning dissent’s to its con- ultimate Similarly, our dissenting colleague’s ar- clusion, every § 2255 motion that panel guments the requirement about of circuit- believe, later, this Court years comes 924(e) law-foreclosure of a at the claim wrongly is decided could be revived under time of sentencing, appeal, direct and the by virtue of the clause. proceeding are restatements This view is unsustainable because it is arguments from her dissenting earlier wholly inconsistent with the bar on second Warden, opinion in v. Williams or successive motions” and “would eviscer- (11th Cir.2013). The Williams Court ate the bar.” Id. at 1348 n.7. (1) 2255(e)’s explained why satisfy § Although partial agrees dissent that requirement remedy —that granted, relief should be what is most “inadequate or petitioner ineffective”—a striking and reply merits some is the dis- must show his sentencing claim was sent’s fulsome attack on the majority opin- squarely foreclosed circuit law at the ion’s remedy-holding, despite the fact the trial, time of direct appeal, and the first majority’s navigation careful has secured a proceeding why letting safe passage Bryant through for the nar- 2255(e) apply the broad 2255(e) portal row to substantial way argues the dissent would eviscerate It undisputed relief.20 is 2243 di- bar on second or successive rects courts to “summarily hear and deter- petitions. See 713 1342-43. facts, mine the and dispose of the matter If our Circuit’s did not justice fore- require.” law and 28 U.S.C. Bryant’s § close defendant statuto- disagreement 2243. Our is over what Pending sepa- before peals present this Court are three sentencing some of the same appeals, separately, rate briefed under three issues and were scheduled and consolidated separate appeal involving numbers defen- argument day, oral on the same the indi- separate Bryant dants in three criminal cases: appeals vidual defendants’ are to be decided Warden, Coleman-Medium, v. appeal FCC individually and were not consolidated for docketed, (11th No. 12-11212 Cir. Mar. And, purposes. decisional as to the dissent's 2012), Coleman-Medium, McKinney v. FCC arguments, claim as to a lack of adversarial docketed, (11th appeal No. 12-12953 Cir. June government’s position main is that 6, 2012); Warden, Mackey FCC Cole- Bryant's burglary conviction should be substi- man-Medium, docketed, appeal No. 12-14729 tuted for- his concealed-firearm conviction 13, 2012). Sept. Cir. opinion This de- and, thus, illegal no detention exists all. Appeal cides ap- No. 12-11212. While the require course en banc justice law to cor- end-run around oúr Gilbert remedy the And, Congress’s here. in that II and eviscerate stat- rect the identified error decision petitions. not write a clean panel utory our does on bar on successive habeas regard, end-run, majority opinion would have us do. To as the dissent avoid slate II, Bryant can- Importantly, under Gilbert harmonizes the law and rationale from Gil- through §a 2241 writ not obtain bert our authority II with habeas portal guidelines- only based voiding portion sen- enti- errors.21 is beyond based that is the maximum tence limits the writ because his grant tled to a prescribed by by expressly law and re- statutory maximum exceeds the sentence fraining permitting resentencing from that extent. penalty only to guidelines based on miscalculations. Con- partial argument trary to the dissent’s majority express holding opinion’s Our remedy not reach the issue at should remedy is limited to a the habeas all, explain it makes no sense to how and statutory maxi- reduction to the why Bryant is entitled to habeas relief helps open what precisely mum telling without also him and the district 2255(e) Bryant the without portal exactly court what of that scope the relief running afoul of our en banc and other is it takes the and what to correct statuto- statutory precedent, circuit the bar on suc- ry error in his sentence. motions, finality and cessive habeas the incorporated into Congress interests cited Not one habeas cases in the The provisions. AEDPA’s 924 error 924(e) statutory dissent involves the sen portal the a 2241 opens to claim and here, tence error much less Gilbert II and § 2241 the nature of relief are inextri- the Williams}22 If the anything, decisions cit statutory in this case of cably intertwined ed partial granted in the dissent that the sentencing error. often remedy habeas writ tailored the particular panel If remove constitutional or opinion our allowed district n (or statutory error that it wholly courts to resentence directed be re moved) calculations, guidelines precisely efficiently revisit earlier our as as poss us, opinion effectively would chart an In case panel ible.23 before acknowledges: Biyant’s keeps prescribed by 21. The "Mr. within the limitations dissent law, customary statutory” pure Begay error claim is not based on a goes the court these guidelines. "[w]hen out of limita mistake about As is well es- tions, action, excess, now, its the extent such by is tablished his claim instead arises added)); (emphasis Single Williams v. void” from the fact that his sentence exceeds the 1510, (11th Cir.1996) tary, 78 F.3d 1516-17 maximum of incarceration term authorized (instructing conditionally the district court to by Congress.” Dissenting Op. at 1298. grant with the writ the condition that 22. The dissent relies on United v. Triest state court either release the or va States man, Cir.1999), (2d prisoner’s duplicative cate materially 178 F.3d conviction and a time served credit the for the sentence on that different case. In the 1999 case Triestman now-vacated conviction to the mandatory sentencing regime, sentences under a convictions); Jones, remaining Williams prisoner's separate court a district invalidated 1086, (10th Cir.2009) (direct 571 F.3d firearm and resentenced the defen conviction "impose remedy the district court remaining drug dant on his conviction with possible remedying as close that comes out that firearm conviction. F.3d 628. - where the constitutional violation” counsel The Second Circuit affirmed. at 626. constitutionally rendered ineffective assis See, Bonner, 242, e.g., threatening re 151 U.S. 257- tance to withdraw if the defen 325-26, 323, offer); Mueller, accepted plea 38 L.Ed. dant Nunes v. (9th Cir.2003) (noting rendering judgment, (directing that "in the court clear; and, States, error is the error can ed 1306-07, precise way: be remedied reduce Cir.2011) (en banc). n.20 In other years sentence to 10 to remove the words, who, this case is about a man be- statutory error. With that reme cause of a mistake by judge made at the dy place, Bryant’s longer detention is no sentenced, time he was is in prison now illegal prece 924 and our Circuit beyond the time allowed the statute dent. setting punishment.

XIV. CONCLUSION government’s concession that sav ings clause relief is pure available for Be- reasons, For all the foregoing we vacate gay error is commendable.1 It is also the district court’s dismissal of Bryant’s consistent with position it took in Gil § 2241 petition with instructions that the bert, where it argued that “[Mr.] Gilbert’s district court grant Bryant 2241 relief claim guidelines-misapplication d[id] stating and enter an order Bryant’s sen- present a ‘fundamental’ sentencing defect tence for his 922(g) conviction hereby ... because his actual sentence was within 10-year statutory reduced to the 924(a). limits and penalty in could be reimposed today.” Br. for the U.S. on Reh’g En AND VACATED REMANDED WITH 20, Gilbert, (No. Banc at 640 F.3d 1292 INSTRUCTIONS. 09-12513), 2011 WL at *20. But MARTIN, Judge, Circuit concurring government also'told us at that time part “[fjundamental dissenting part: defects, such as an sentence, erroneous ACCA

I in Majority’s concur the conclusion should be redressable under the savings that the in clause 28 U.S.C. clause under the same circumstances that 2255(e), together 2241, with 28 U.S.C. would apply to a non-existent-offense give Mr. remedy a in this case. claim.” Id. So it is not surprising that the Bryant’s Mr. claim is that he wrongly government to continues disavow in sentenced under the Armed Career Crimi- stitutional interest in (ACCA), keeping person nal in Act of 1984 18 U.S.C. prison beyond the statutory His maximum squarely case thus presents prescribed by the issue left sentence open Congress. our en In banc decision deed, government Gilbert: whether 2241 the strong is available has a inter where the asserted in sentencing preventing injustice. error est type States, resulted in a term of Berger 78, incarceration above See v. United 295 U.S. 88, 629, 633, (1935) that would have 55 S.Ct. 79 L.Ed. 1314 (“The applied but for the error. Gilbert v. Unit- Attorney United' States repre- is the petitioner] "the prior [the state to release agree within Majority conviction. I with the days petitioner] 120 it unless offers [the government may that the not now substitute same material terms that were contained in predicate in a new to offense maintain Mr. offer”). original plea [the state’s] Bryant's Majority ACCA sentence. As the out, points government any argu- waived States, 137, 1. See v. United 553 U.S. Bryant's prior burglary ment that Mr. 1988 1581, (2008). 128 S.Ct. 170 L.Ed.2d 490 conviction qualifying could be used as a third government argues While predicate felony under the ACCA at the time error, pure Begay clause relief is available for Maj. he Op. was sentenced. See at 1279-80 says it that Mr. ACCA sentence is still 1251, (citing Canty, United States v. 570 F.3d valid history because his criminal still in- (11th Cir.2009); Petite, qualifying predicate cludes three 1257 United States v. convictions 1290, carrying even Cir.2013)). absent his a concealed firearm 1292 n.2 1292 ”); to Ex ordinary party by an statute his offense.... Parte not of

sentative (18 Wall.) 176, 163, U.S. 21 sovereignty Lange, of a whose 85 controversy, but (1873) (granting is as com- L.Ed. 872 habeas relief to govern impartially obligation all; had been sentenced obligation govern a federal who as its pelling interest, therefore, and a imprisonment in a crimi- to a term fine and whose imprison- prescribed that it shall win a statute nal not where prosecution done.”). fine); case, McCleskey ment or a see also v. justice shall be but Zant, 478, 467, 1454, 111 499 U.S. S.Ct. anything means If the (1991) 1462, (confirming 113 517 L.Ed.2d context, apply it must Parte involved “sen- Lange that Ex exceeds that in which cases imposed without authori- tence[ ] begin with by Congress. We authorized zation”). that federal courts have limit- precept Congress, provides not an jurisdiction it is the Where ed judicial courts, punishment interpretation authoritative of a range which sets the statute, statute, like it just Congress as substantive criminal did by establishes change not Begay, of crimes statute. See Court does the elements Lanier, 259, way meaning of the in such a States v. 520 U.S. 267 law United 1219, concerns, n.6, n.6, finality implicates but rather es 117 S.Ct. L.Ed.2d (“Federal (1997) always crimes are defined tablishes what the law has meant. Inc., ”); Roadway Express, not the courts.... Whalen v. See Rivers v. Congress, States, 689, 298, 684, n.12, 1510, 312-13 United S.Ct. U.S. & (“[T]he (1980) (1994); 1436, n.12, 1432, 63 L.Ed.2d 715 1519 & L.Ed.2d see 225, White, 228-29, to define criminal offenses and Fiore v. 531 U.S. power to also punishments imposed to be prescribe the 148 L.Ed.2d -them,, it guilty (holding process found violates due upon those resides Congress.”); conduct with United convict defendant for that a wholly Wheat) (5 Wiltberger, statute, interpreted, properly 18 U.S. “criminal States (1820) (“It way, legislature, prohibit”). Begay, 5 L.Ed. 37 is the does In this Court, crime, Archer,2 prior which a and that a Canty3 not the is to define tell us punishment.”). Congress for carrying and ordain its offense a concealed firearm felony” a under may give federal courts broad discretion to was never “violent the ACCA, Bryant a was impose sentence within therefore Mr. nev separation principles er an armed range, powers but of career criminal. Because he criminal, that the that sentence fall was an require limits of never armed career parameters by Congress. jurisdiction within the set District Court never had to States, impose Certainly v. United 500 it Chapman See U.S. sentence did. our 453, 465, 1919, 1927, 111 114 august pow L.Ed.2d federal courts are not without (1991) (“[A] person remedy a mistakenly 524 who has been ... er to im sentence for, eligible by jurisdiction is and the court a court may posed convicted that lacked to punishment is it. impose, impose responsibility whatever authorized Indeed it is the Archer, Canty, v. 2. United States 1352 3. United States v. 570 F.3d 1255 Cir.2008) Begay (recognizing (11th Cir.2009) that (applying Archer and clearly point prior and undermined circuit holding carrying ACCA context and "that point abrogation to the such that weapon felony concealed is not a violent carrying weapon a concealed cannot be con- predicate used be as a conviction to a "crime of under the ca- sidered violence” enhance defendant's sentence guideline reer offender in United States Sen- ACCA”). (USSG) 4B1.2). tencing Guidelines (or Bryant already 4,302 days courts to cure detention has served of federal months, years, legal days) its limits. and 9 exceeded —well excess of the reasons, ex- For as well as those these years. Majority, agree I that the pressed by Bryant Because Mr. already has served savings clause must be available to habeas prison more than time Bryant like Mr. who can dem- authorized petitioners Congress, writ, simply grant we should they to a onstrate that were sentenced vacate judgment deny- the District Court’s longer Congress than provided term what petition, §' however, remand I cannot with agree, statute. case to the District Court for the Middle Majority’s of the portions opinion those There, District of Florida. the District beyond what go provides the law enter this would Court’s Order end, I requires. To this will what this case granting the writ and direct the Warden ways three I believe discuss the which Coleman Correctional Institution to imme- Majority’s analysis is flawed.

diately Bryant. Mr. release See 28 U.S.C. OF THE 2241(a) SCOPE (“Writs of habeas corpus may be HABEAS REMEDY granted by Supreme Court, any justice thereof, courts the district circuit Majority opinion Part XII of the con- judge their respective jurisdic- within reducing Bryant’s cludes that Mr. tions.”). years remedy. agree to ten is the IWhile proper Bryant

this is the result for Mr. light Also in fact that he has here, Majority’s analysis in Part XII already beyond a term served what the goes beyond necessary what is decide allows, it is not necessary statute for us presents. his case question Bryant. arrive at a sentence for Mr. Cer- tainly, recognize remedy I Granting a. The Writ Resen- Without § 2241 encompasses more than immediate Remedy tencing Appropriate Is The (authorizing release —see 28 U.S.C. Bryant’s In Mr. Case Because He federal courts in habeas proceedings Already Has Served. More Than Ten matter “dispose justice as law and In Prison. Years Dotson, require”); Wilkinson 74, 85-86, panel unanimously agrees 1242, 1250, Our that Mr. (Scalia, J., concurring) current sentence exceeds his stat- L.Ed.2d 253 utory years maximum of 10 under 18 (recognizing “dispose 2243’s 924(a). justice Mr. sen- require” U.S.C. matter as law lan- 15, March guage permit tenced on to serve 235- “to re- interpreted has been 2002 cases)). imprisonment months three (collecting as well as lief short of release” years supervised single only remedy appropriate of release for a But the now for 924(e)(1). §§ 922(g) Bryant violation of and The Mr. his immediate is release. Giv- sentenced, day capping Mr. was Bryant Bryant’s he was en the statute Mr. sen- immediately custody remanded to the of and that years, tence at ten he has now designation by years, the Marshals to await twelve U.S. served there would close Thus, the Bureau of Prisons.4 from the a District a nothing be for Court to do at ' sentencing today, Bryant date of his until Mr. Mr. resentencing.5 is due for im- initially custody Bryant setting 4. Mr. taken 5. aside the of into Even issue of his term incarceration, else, nothing the Marshal Service on there is December such detained, release, supervised and then released bond on an term of unauthorized require Bryant 2000. Mr. December which would to be resen- 1294 mum. See id. Thus, Bryant’s custody allowing of the release from

mediate to pro- claim above-statutory-maximum Prisons. Bureau of petition through in a ceed Possibility A Re- Ruling Out The 2255(e)’s allowing b. savings clause Of Is Incon- sentencing Cases Other court to reduce sen- Statute, statutory to the maximum The tence The Text With sistent Of not the collateral-relief does undermine Usage, And And Current Historical §in by Congress structure built 2255. The Writ. Nature Equitable Of (footnote omitted). Maj. Op. Majority that a Having agreed with statute, simply nothing in the our There is necessary for Mr. resentencing is not precedent, or that of the United States disagree suggestion its Bryant, I with Court, systematical- which would may never be nec- resentencing dicta that limit relief in all of these cases to a ly essary: is, of ten the maxi- years —that § 2241 need court or is no for There permitted by mum the statute. hold, a sentencing court to resentenc- Further, judicial principles of restraint to further determine the ing hearing or a against pronouncing counsel our broad range within appropriate may preclude rule categorical this all, After statutory penalty. maximum and future District Courts from or- § 2241 to a sentence that any challenge than a dering remedy reducing other below authorized statutory already is very most time petitioner’s sentence to open could not a permits. display the statute Indeed of II, 640 F.3d at See Gilbert 1323. portal. judicial especially appropriate restraint is And, is Bryant petition not here, given that not had the we have bene- any misapplication attack briefing able fit of on the issue of adversarial proper remedy.7 maxi- guidelines below release, Corr., Dep't Upon Sec’y, his Fla. Mr. will tenced. of (11th Cir.2006) ("The prior serving years supervised holdings begin of of deci- three release,.see 3624(e), which is sion can reach as far as the facts and U.S.C. an precise pre- supervised term release for a circumstances issue authorized of frame case.”). 922(g) §§ U.S.C. sented in that conviction 924(a). 3559(a)(3) (classify- See U.S.C. briefing Neither 7. have we had the benefit with maximum term offenses question proper remedy on the is the of what felony); years C ten as Class U.S.C. involving in the two other consolidated cases 3583(b)(2) super- (authorizing a term of McKinney Mackey. Majori- Messrs. felony for a C of "not more vised release Class now, ty has set aside but fear these cases I 5D1.2(a)(2). years"); than three USSG opinion 10-year to a dooms both men petitioner's be in which a There cases n parties To the extent the sentence. Messrs. release, supervised like his term term of McKinney’s Mackey’s cases did talk incarceration, that authorized exceeds it, however, support about comments their Congress, Bryant's Mr. but them. one straightforward the conclusion that a resen- Majority suggests tencing To the extent the without the ACCAenhancement is the appropriate remedy. example, gov- could include a resentenc- For the 2241 relief never .legal joint original McKinney, and in No. to what the sentence ernment's answer brief been, 12-12953, Williams, 12-12841, portions of the Ma and No. should have those dicta, vacated, holding. jority’s opinion They judgment are states: "The should be and pattern grant simply go beyond peculiar fact the cases with instructions to the remanded corpus by Bryant's petitions See presented Mr. case. Licciar the for a writ of habeas and 1280, Lovelady, McKinney 1288 direct that and Williams be v. n.8 resen- dello Cir.2008) (“Our holding, always, by tenced the court of conviction without the is us.”); Resp. the the Chavers v. ACCAenhancement.” Br. for War- limited to facts before

1295 event, ed to broad Majority’s unjustifi- powers In the confer remedial on the is ably remedy of the available federal courts: court “[t]he limited view invested largest power § 2241 consistent the with the is not with to control and di- statute, rect of judgment historical and current the form to entered in text be brought up nature of cases before it usage, equitable or the the writ: on habeas cor- Bonner, analysis pus.” 242, 261, Majority’s recognize fails to In re 151 14 The U.S. (1894). 323, 327, provide to a rem- S.Ct. 38 that 2255 was enacted L.Ed. 149 “[Sec- sentencing equal in edy exactly scope the court 2243’s delineation of the tion] of remedy permissible applies the available under 2241. See relief federal to to all ha- States, 427, 424, proceedings, petitioner v. 368 U.S. 82 beas Hill United whether the is (1962) (“[Sec- 468, 471, 2241(c).” 417 custody, 7 L.Ed.2d federal or state S.Ct. see Wilkinson, simply pro- 87, 2255 was ... intended to 544 at 125 tion] U.S. S.Ct. at J., court a ex- remedy (Scalia, concurring). vide the 1251 actly with that which had commensurate Usage ii. Historical and Current by corpus previously been available habeas in the court of the district where pris- the me, it important put For to Mr. added)); (emphasis see oner was confined.” proper case into the historical States, 333, Davis v. 417 also United U.S. context. While Justice Scalia has noted 2298, 2304, 41 109 S.Ct. L.Ed.2d the relief broad now available to habeas (1974) (stating provides remedy course, was, petitioners, this not always to federal cor- scope “identical habeas the “For history, case. much of our pus”). interpreted ... [the statute] habeas to re flect the principle pris common-law i. Text of the Statute: U.S.C. seeking corpus oner writ of habeas could long enjoyed challenge jurisdiction Federal courts have of the court to power duty “dispose and the rendered judgment had [habeas West, corpus petitions] justice Wright ... as law which v. custody.” he was Indeed, 277, 285, 112 2482, 2486, require.” U.S.C. S.Ct. (1992). corpus gradually the habeas statute L.Ed.2d 225 But “[s]ince has directed the category courts determine of claims considered bestow jurisdiction in dispose summarily, support facts and of the case relief habeas ” justice require.’ Peyton grew. example, ‘as law and Id. For as relevant Rowe, 1549; 54, 66-67, here, pure 391 U.S. error we consider 1556, 20 (quoting imposi L.Ed.2d Rev. 1873 held (1874), superseded by '28 tion of a above that Stat. áuthorized 2243). justice” recognized “law and re- jurisdictional U.S.C. statute was as a historically quirement interpret- has been defect that could be remedied federal 12-12953, McKinney, supplemental dens at No. & seled for Messrs. McKin- brief (Jan. 11, 2013). ney Mackey judgment 12-12841 states: "The vacated, way, joint government’s supplemen- same should be and the cases remanded 12-12953, McKinney, Mackey, grant tal petitions, brief in with instructions to and to 12-14727, matter, justice judgment denying dispose "The concludes: as law and re- McKinney's Mackey’s quire by directing petitioners petitions habeas be resen- should be and the tenced reversed cases remanded without ACCA enhancement.” (Joint) grant Supplemental with the writs and instructions direct Br. for Pet’rs 12-12953, petitioners according- McKinney, Mackey, that the be resentenced & 12-14792 (June 27, 2013); (Joint) ly.” Rep. Supplemental Resp. Br. for Warden see also Br. for 30, 12-14727, 18, 12-12953, Mackey, McKinney, McKinney, & 12- at & Pet’rs 5, 2013). Also, 19, 2013) (same). (Aug. joint Mackey, (Aug. 12953 coun- 12-14792

1296 (18 ability lacked the to order a Lange, they 85 U.S. parte See Ex habeas. order had no choice but to Wall.) retrial and at 176. unconditionally, often released prisoner of category cognizable just And as See, e.g., to Ex prejudice without retrial. narrow, very so once claims was habeas Frederich, 77-78, 149 at 13 parte U.S. Again, it is Justice too were remedies. 795-96; Medley, In re 134 U.S. at S.Ct. at explained: who Scalia 173, 10 at 388. But the habeas reme S.Ct. adop- U.S.C.] At the time of 1983’s [42 time. accommo dy over It now evolved tion, the habeas statute mirrored federal flexible For exam dates more remedies. corpus, of writ habeas the common-law ple, court issue a conditional a habeas form of single in that it authorized order, only requires which release release immediate release the prisoner’s relief: retrial, resentencing, if a or 1867, 5, Act of custody. from See Feb. sufficient cure the violation other action to 1, Congress shortly 14 Stat. period within allotted of does not occur an statute, autho- thereafter amended Braunskill, Hilton 481 time. See v. U.S. ‘dispose courts rizing habeas to federal 770, 775, 2113, 2118, 95 107 S.Ct. L.Ed.2d justice require,’ law and party of (“Federal (1987) corpus prac 724 habeas vir- Rev. Stat. 761. The statute reads tice, of as reflected the decisions this today, § 2243 tually the 28 U.S.C. same Court, has indicates a court broad n judgment justice matter as law and (‘dispose of the conditioning discretion this require’). interpreted have We relief.”). habeas granting language re- permit broader remedial to recognize courts now the broad Federal lief short of release. beyond just use of the writ—for remedies Wilkinson, 85, at at 125 S.Ct. 544 U.S. unconditionally conditionally terminat- con originally 1250. Habeas relief was custody. As the physical requiring the petitioner’s fined to orders is not “[The Writ] Court has told us: now See, custody. static, narrow, from unconditional release has been a for- never Frederick, 70, 149 77- e.g., remedy; scope grown Ex Parte U.S. its has malistic 795-96, 78, 793, grand purpose protection 37 L.Ed. 653 achieve its 13 S.Ct. —the right (1893); 160, 173, against of individuals erosion of their 134 10 Medley, re U.S. (1890). upon from restraints wrongful to be free 384, 388, L.Ed. 835 If the liberty.” Cunningkam, their Jones v. proved by petitioner did not legal error 377, 243, 373, 236, U.S. 83 S.Ct. 9 L.Ed.2d custody her had illegal, render current she (1963). See, Hill, remedy. McNally e.g., no v. 24, 27, 131, 138, 55 S.Ct. 79 L.Ed. 238 U.S. corpus So while modern federal habeas (1934), by Peyton, overruled practice moved full realization has towards 67, if the Conversely, S.Ct. at 1556. justice” “law and command the statute’s complained petition appropri- error of showed the recognizing variety wide orders,8 custody ate XII illegal, courts assumed remedial Part of Ma- er’s 85, Wilkinson, 'dispose 544 U.S. 125 S.Ct. at authorizes federal habeas courts 8. See ("We (Scalia, J., concurring) ”); justice have inter requires.’ the matter as law see per preted language Bush, 723, 779, remedial broader v. Boumediene 553 U.S. also release.”); Att'y mit relief short of Dasher L.Ed.2d 41 Fla., Gen., (11th Cir. ("[Tjhe power habeas court must have 2009) (granting ordering writ relief of an order the conditional release of individual served”); sentence to "time modification: of unlawfully though release need not detained — ("Our id. to formulate such a rem discretion remedy appro- not the be the exclusive and is judgment edy, disturbing the con without case, priate every the writ in which one viction, 28 U.S.C. which derives from 848, (1963) (“[H]abeas deprive would this Court of 9 L.Ed.2d jority opinion cor flexibility and to fashion power pus all has been traditionally regarded as a petitioner’s other than to reduce remedy governed by equitable principles.”), over impris- to the maximum of sentence term part grounds ruled in other Wain (i.e., permitted by ten onment statute wright 72, Sykes, 87-90, v. 433 U.S. pure Majori- The years) Begay for error. 2497, 2507-08, (1977). S.Ct. 53 L.Ed.2d 594 ty’s powers view of our habeas pinched The “repeatedly has recog contrary simply is to the broad and duties nized that of principles fundamental fair interpretation giv- has been remedial underlie of ness the writ habeas corpus.” justice” “law en to the command Sawyer 333, 351, v. Whitley, 505 U.S. The text of habeas 2243. “statute 2514, 2525, (1992) 120 L.Ed.2d 269 deny power the federal courts does not (Blackmum, J., concurring); Sanders v. appropriate Peyton, fashion relief.” States, 1, 17, United 373 U.S. 83 S.Ct. 66, 88 S.Ct. at 1556. U.S. 1068, (1963). 1078, 10 L.Ed.2d case, being This princi- traditional Equitable (cid:127)iii. Nature of the Writ ples equity of require us to consider the Also, Majority to the extent individual facts pe- and circumstances of a pure that the a implies remedy for titioner’s case and then fashion the remedy reducing petitioner’s error limited to is Dasher, is proper for him. See maximum, to the statutory sentence it ei- (reducing petition- habeas unreasonably ther does not consider or er’s sentence to time served based on equitable nature of the discounts writ. legal counsel’s inadequate plead advice to of an corpus equitable The writ habeas is without guilty plea agreement); id. remedy. See Gomez v. Dist. Court (recognizing that a court’s “discretion to Cal., 653, 653-54, N. Dist. 503 U.S. of remedy, formulate such a without disturb- 1652, 1653, 112 S.Ct. 118 L.Ed.2d 293 conviction, judgment ing of derives curiam) (‘Whether (1992) (per claim is [a] 2243”).9 from 28 U.S.C. as a or as a petition framed habeas [42 Mackey’s Mr. illustrates case how im- action, sought [what U.S.C.] is] it is for us to leave future portant courts result, equitable remedy”; equity an as a remedy free fashion appropriate consideration”); “take[n] must be into yet to come. cases 195, 213, Eagan, v. Duckworth 492 U.S. 2003, Mackey September Mr. was indicted 2875, 2886, 109 S.Ct. 106 L.Ed.2d 166 in the (“[T]he Southern District Florida on a (O’Connor, J., concurring) single possession count of felon in being a long recognized Court has that habeas cor- ammunition, firearms ... arid violation of pus governed by princi- equitable [is] ” omitted)); §§ ples (quotation 922(g)(1) .... 18 U.S.C. Fay marks He Noia, 391, 438, guilty] v. 372 U.S. pleaded presentence investi- Mueller, granted.”); already Nunes 350 F.3d served "at least twice sentence as Cir.2003) (“Conceptually, any long habe- possible” as would have if been trial remedy put should the defendant back in persuad- counsel had not been ineffective in position he would have been in if ... offer); petitioner accept plea [constitutional] violation never occurred....” Singletary, Williams v. 78 F.3d 1516-17 omitted)). (quotation marks (11th Cir.1996) (granting habeas relief for un- imposition of constitutional cumulative sen- Keane, Boria v. See also 498-99 single tences for incident criminal behavior (2d 1996) (granting Cir. relief and re habeas vacating crediting one ducing discharg sentence to time served and other). already time served to the ing petitioner prison from because he had (PSR) he the or of fails on holding set forth that was rationale Gilbert report

gation sentence based on subject to an enhanced its own terms. denied Gilbert convictions: following prior three he the clause relief to Mr. Gilbert because mis- Robbery guidelines claimed that his were 1. contrast, applied. Bryant’s pure Mr. a firearm Carrying 2. concealed Begay error claim is not based on a mis- Carrying a concealed firearm 3. guidelines. take the es- about As is well Mackey to serve was sentenced Mr. now, claim arises tablished his instead plus years imprisonment four 180-months from the fact that sentence the exceeds guideline range His of release. supervised of maximum term incarceration authorized he was sentenced was 180-188 at the time by Congress. ruling court’s This Gil- the ACCA enhancement. months with rule explicitly bert declined to on whether enhancement, which Without the ACCA pure relief for was available wrongly Mr. imposed, know was now Begay Id. at It cannot error. 1319 n.20. total level crimi- Mackey’s offense said, therefore, II, properly be that Gilbert history category yielding guide- nal any- even considered—much less range line of months. Because Mr. 30-37 decided— limit, thing least all Mackey already scope, pro- has served at about the or years imprisonment errors, ACCA remedy towards his priety particular of a for sentence, put we cannot now him pure errors, cognizable like that are position to receive the sentence he should under have the first time around. received Were Second, it once that the is established otherwise, I argue it would that he should remedy “inadequate under 2255 is be resentenced without the ACCA en- pure ineffective” under for Be- justice We do not administer hancement. errors, gay it to portal follows the by stopping every defendant whose sen- § 2241 “In a open is for those errors. obviously illegal tence an was so tainted case the is procedure where Section from being

ACCA enhancement resen- ineffective’, shown to be or ... ‘inadequate simply of our tenced because own mistake corpus remedy the habeas shall remain in defining felony” the term “violent open hearing.” to afford necessary the ACCA. United Hayman, States (1952). 263, 274, 96 L.Ed. 232 on

iv. Reliance Gilbert therefore, portal § 2241 open, Once the is As support conclusion that to require statute seems to me us to “[tjhere is no for the 2241 court need look at facts and circumstances of each resentencing court hold “dispose individual matter case appro- or to further hearing determine justice as law require.” 28 U.S.C. priate sentencing range within the statuto- § 2243. maximum,” ry Majority opinion rea- sons, all, challenge to a “[a]fter Third, potential administrative already that is below author- problems resentencing petitioners some open ized maximum could not § 2241 should not foreclose the Maj. portal.” Op. at 1288 possibility resentencing others an 1323). Gilbert, F.3d at (citing appropriate case. no The statute offers Majority’s reliance Gilbert misses the protection workload for federal courts. mark ways. in several contrary, To the authority grant our First, any corpus pris- the writ of habeas extends to attempt tether limitation remedy juris- in custody available under oners who are within our “[tjhere petition recognized the time the itself diction at habeas Wofford 2241(a). In the filed. See U.S.C. was no intent to remedy make way, are courts limited to any “[district same different in from scope the habeas habeas relief ‘within their re- granting remedy that previously had been available ” jurisdictions.’ spective v. Pa- 1239; them.” to 177 at see Rumsfeld also 426, dilla, 442, 2711, 542 U.S. Davis, 344, 417 U.S. at 94 S.Ct. at 2304 (2004) 2722, (quoting 159 L.Ed.2d 513 28 (“Nowhere history in the of Section 2255 2241(a)). § Again, reason U.S.C. any purpose do find to impinge upon in was “to mini- 2255 enacted 1948 prisoners’ rights of collateral attack upon mize the difficulties encountered habeas their convictions. the contrary, On hearings by affording the same corpus purpose sole was minimize to the difficul- rights in another and convenient fo- more ties encountered in corpus habeas hearings 219, Hayman, 72 rum.” 342 U.S. at S.Ct. by affording rights the same in another (1952) added); (emphasis at 272 Wofford and more forum.” (quotation convenient (11th Scott, 1236, v. 177 F.3d 1238-39 Cir. omitted)). marks 1999), implied overruling recognized by Finally, there is persuasive authority (Medi v. Turner Warden Coleman FCI outside the Eleventh Circuit for resentenc- Cir.2013). um), 1328, 709 F.3d 1333 clause, ing under the defendants In Hayman, pointed Court after even passage Antiterror- Johnston, 275, to Walker v. U.S. 61 312 ism and Effective Penalty Death Act of (1941) 574, S.Ct. 85 L.Ed. as an ex 830 1996, 2241, 28 et seq. U.S.C. For exam- ample “practical problem presented Triestman, ple, United States then application corpus when an for habeas al Judge Sotomayor Circuit held that a Dis- leges a meritorious claim not controverted power trict had the resentence by the records of the trial court.” 342 petitioner drug habeas on his convictions 213, 72 U.S. at S.Ct. at 269. successfully after he challenged his fire- getting too far into the weeds Without arm conviction in 2241 proceeding on Walker, resolution that habeas States, the basis of Bailey v. United 516 petition required an holding evidentiary 501, S.Ct. L.Ed.2d 472 in the District of hearing Northern Cali- (1995). (2d Cir.1999); 178 F.3d 628-30 though fornia complained even the events Brown v. 719 F.3d Caraway, cf. petitioner happened Texas and (7th Cir.2013) (granting relief to is where federal officers who were petitioner erroneously sentenced as a ca- Walker, witnesses were located. See offender for pure type reer error 278-82, 286-87, 576-77, U.S. at S.Ct. remanding pre-Booker, “with instruc- 579; Hayman, also U.S. at see to' tions reduce sentence to [defendant’s] Thus, at 269. while Walker offers a finding [the reflect that he is not a Court’s] good demonstration of the inconveniences career offender within the meaning of avoid, 2255 was it enacted to also 4B1.1”). [USSG] that it possible teaches to resolve even (or geographically dispersed otherwise 924(c) Mr. Triestman’s conviction was complicated) factual in the claims habeas proceeding pursuant vacated in a 2241 necessary. § court under when Bailey. The District Court then recalcu- guidelines lated Mr. Triestman’s such a today should same be true —not- way guideline withstanding range. increased enactment 2255— Triestman, where we determine that 2255 is 628. Mr. Triest- inade- all, quate unchallenged or ineffective. After our Court man was on his resentenced Begay, by this decision in as extended imprison- a term of drug convictions Bryant’s prior convic- he had received Court to distinct longer that what ment tion, relief. The sentenc- circuit getting habeas overturned our before power “the Court’s foreclosed squarely court reasoned that had claim; (3) relief is no narrower appropriate new rule an- fashion 2255 and § 2241 than it is retroactively Begay applies nounced courts broad discretion that federal review; have as a result of on collateral original corpus statute to under the habeas retroactive, being Begay’s new rule jus- as- relief law appropriate fashion the Bryant’s current exceeds (quotation marks tice Id at 627 require.” 10-year statutory authorized maximum agreed, omitted).. The Circuit Second (5) 924(a); §in the by Congress a also see no reason view stating: “We 2255(e) § in his savings clause reaches narrowly more in powers remedial court’s of ille- pure 924(e)-Begay § error claim § § in a 2255 motion.” 2241 motion than maxi- gal above the detention (now) Indeed, Sotoma- Id Justice at 630. 924(a). §in mum penalty the yor’s opinion also indicated Maj. I Op. at 1274. Of course am aware rely petitioner’s the court could habeas Warden, in Bureau that Fed. Williams original resentencing in him. Id at PSR this Court established that Prisons of more than provides Triestman 632-34. get habeas relief petitioner order for a just example that resentenc- persuasive clause, she estab- under the must remedy an available is her, by was lish that relief foreclosed to it It that sometimes is also demonstrates binding precedent, only not at the circuit necessary and recalculate a appropriate motion, of also at time the first but sentencing guidelines defendant’s the the time of trial and time of proceeding purposes to achieve the appeal. direct 1349-50 sentencing Congress mandated (11th Cir.2013). before, As I I have said 3553(a). U.S.C. nothing requires read in thé which statute this. See 713 F.3d at 1350-56 2. THE TIME FOR MEASURING ’ J., (Martin, my I dissenting). adhere to FORECLOSURE subject dissenting views on Majority’s My about the second concern Williams. five-part opinion is the of a announcement simply provides that clause availability of determining test sav- for §a not be petition “shall entertained ings clause relief: appears applicant if it that the failed to has prior To show his 2255 motion was apply for relief ... to the court which ineffective, or test “inadequate him, sentenced or that such court has de- detention,” his legality must relief, appears nied him unless it also (1) throughout his sen- establish remedy by motion inade- [§ 2255] tencing, appeal, direct and first quate legality or test the ineffective to prece- proceeding, binding our Circuit’s 2255(e). No- his detention.” U.S.C. specifically had dent addressed provision in this did where prior trig- distinct state conviction Congress get mention that in order to gered § and had fore- squarely now, petitioner relief had to have been Bryant’s § closed claim he getting from relief time of foreclosed erroneously was sentenced above trial, ap- sentencing, direct 10-year statutory rele- 924(a); peal. The statute refers to the subsequent to his first period as the denial of proceeding, Court’s vant time (if filed) appeal; wrongly § 2255 motion one was and the direct and we decided the therefore, my reading, Based on present. him, against thereby issue mistakenly es- point measuring the relevant circuit tablishing precedent the circuit that carry- is at the time the first foreclosure ing a concealed is a felony firearm violent , adjudicated, not the motion time The Majority ACCA. Rule appeal.10 or direct deny would him relief because he was the first to proper raise the issue. The inqui- again, Once one of three our consolidat- ry under the Coleman, savings clause should be the (McKinney ed cases v. FCC No. 12-12953), one- intended Congress: whether jus- demonstrates the denial of “remedy by requiring [§ that can result motion is inadequate 2255] tice from foreclo- legality sure habeas claim the time of ineffective to test of his trial and Circuit appeal. direct detention.” 28 ig- U.S.C. We argument prior did foreclose the that a nore the mandate of the statute when we carrying offense of a concealed firearm require also appeal that the direct be inef- felony” not a “violent at the of time or inadequate. fective McKinney’s Mr. trial and direct appeal. He raised the issue at his trial and in his WHO 3. DECIDES WHEN CIRCUIT (cid:127) fact, appeal. direct it was his case PRECEDENT IS BUSTED co-defendant) that (specifically of his that My final concern to the Majori- relates precedent established the circuit that fore- apparent ty’s endorsement the view him closed from the issue at raising analysis, “[u]nder Williams’s circuit time of his first motion. See Unit- precedent ‘squarely would still foreclose’ Hall, 398, (11th States v. ed 77 F.3d 401-02 any Begay-based sentencing claim unless Cir.1996) (holding carrying that a con- until Begay’s holding was extended to weapon in cealed violation Florida law discrete involving situation a specific pri- felony” constituted a “violent under the Maj. or state conviction.” Op. at 1275.

ACCA), abrogation recognized by I agree that did not Begay abrogate While Williams, 713 at 1346. “all of this pre-Begay Court’s violent felo- likely deny And our Court will now relief ny jurisprudence,” Maj. Op. at 1275'(quot- Mr. McKinney because the relief he 1347), I 713 F.3d do not seeks was not to him at foreclosed the time agree that clause relief is of his trial and appeal. direct if we And recognizes available this Court that after this, do, will spite do so in of the fact Begay, retroactively applica- other government argued that has not that decision, Supreme ble has Court busted this preclude McKinney should Mr. from precedent. circuit quite clause relief. Indeed to the Certainly, recognition explicit by this contrary, government’s position is that that Supreme Court decision McKinney Mr. Court abro- is entitled Surely requires gated prior precedent would be equity relief. relief suffi- See, Archer, McKinney Mr. preserved e.g., when he: cient. F.3d at his trial; argument pursued (holding ACCA it clearly point “is on course, procedural Of preserved petition); a defendant whether default rule to 10. States, objection at the see also Shukwit v. United 973 F.2d time 903, Cir.1992) (11th appeal may direct (recognizing be relevant to the non- jurisdictional procedural procedural jurisdictional, determination of de is not default rule See, Holder, e.g., Sawyer fault. v. 326 F.3d but is an affirmative defense can be Cir.2003) waived). (11th (applying 1366-67 point Gilbert to the undermined has INC., TECHNOLOGY, KILOPASS express abrogation by But abrogation”). Plaintiff-Appellee, always necessary. be To us not Majority opinion implies other- extent the v.

wise, are suggests that District Courts it CORPORATION, SIDENSE controlling Supreme apply required Defendant-Appellant. unless and until Court No. 2013-1193. Supreme recognizes Court first Appeals, United States Court of prece- our own abrogated prior has Federal Circuit. However, circuit deci- “[a] dent. court’s sitting courts sion binds the district within Dec. 2013. jurisdiction a decision its while Su- Rehearing En Banc Denied all circuit and district preme Court binds March Houston, McGinley courts.” Cir.2004). When the Su- law, announces new rules of preme Court retroactively applicable in-

including cases statutory interpretation,

volving District decisions, those

Courts are bound from

the date of the Court’s decision

forward.

4. CONCLUSION here,

For reasons I have I discussed Majority’s

concur conclusion that with 2241 relief is available Mr.

because he was sentenced the statu- above

tory I dissent to portions maximum. those beyond Majority’s opinion go narrowing

what provides the statute

both prisoners the class of who stand pure

benefit from clause relief for remedy errors and the available they

them get once relief.

Case Details

Case Name: Dudley Bryant, Jr. v. Warden, FCC Coleman - Medium

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Dec 24, 2013

Citation: 738 F.3d 1253

Docket Number: 12-11212

Court Abbreviation: 11th Cir.