*4 In preparation for Turner’s sentencing, HILL, Before WILSON and Circuit the United States Probation pre- Office HUCK,* Judges, and District Judge. pared a Presentence Investigation Report (PSR), which detailed Turner’s crimi- long WILSON, Judge: Circuit nal history. particular Of relevance this Turner, Michael prisoner, federal ap- appeal, the PSR descriptions included peals the district court’s dismissal of his 28 Turner’s (1) previous convictions for: § U.S.C. 2241 petition for a writ of habeas shooting an occupied into building ag- and corpus, arguing § that his (2) petition gravated assault; battery on a law cognizable under savings clause of officer; (3) 28 enforcement aggravated § U.S.C. 2255 because intervening changes battery. regard With to the convictions in the law have rendered 2255 “inade- for shooting into occupied building and quate or ineffective to test the legality of aggravated assault, explained the PSR 2255(e). his detention.” Specifically, that in Turner had fired two shots at Turner argues that longer he no a man standing home, outside of his for an enhanced pursuant sentence that one two shots had entered Armed Career (ACCA), Criminal Act 18 through the front of the window home. As 924(e), U.S.C. because under law passed to the conviction for battery on a law down since his initial motion, officer, enforcement the PSR relayed that offenses that predicate formed for the Turner fled from officers after an longer enhancement no “violent apparent drug transaction, their resisted felonies” under the Finding ACCA. him, no attempt to subdue pushed one of еrror in the district court’s classification of deputies wall, injuring left her * Huck, da, Honorable Paul C. sitting by States Dis- designation. trict Judge for the Southern District Flori- plea guilty his first time for the ing explained Finally, the PSR
hand. involuntary be- unknowing had been battery aggravated Turner’s conviction 15- of the ACCA unaware he was cause in which Turner an incident stemmed he would to which sentence minimum year Tur- in 1996. chest a man stabbed re- court denied The district subject. be during before object, either did not ner lief. factual de- PSR’s sentencing, to the his 2009, Tur later, in March years Three of these offenses. scriptions § 2241 se pro ner filed initially calculated The PSR dispute. the instant heart of forms months; how at 77 to 96 range guideline however, time, Turner abandoned This convictions ever, he had three that, light argued challenge Blakely above, Tur referenced felonies the violent Begay Supreme Court’s to the ACCA subject was ner’s sentence 553 U.S. v. United enhancement, a minimum which mandated (2008), and this 170 L.Ed.2d *5 See imprisonment. years’ 15 of sentence Archer, v. States decision in United court’s objec sole Turner’s sentencing, At id. his Cir.2008), (11th he is “actu F.3d 1347 531 un that, convictions the because tion was career armed being a[n] of ally innocent were enhancement derlying the ACCA underlying the offenses offender” indictment, into stipulated the set out in longer qualify no enhancement his ACCA the admitted at agreement, or plea the the argued He also felonies. as violent of the ACCA application the plea colloquy, of use government’s first time the of teachings booking the re violatеd enhancement arrest and information 296, prior 124 his of Washington, ascertaining 542 U.S. the extent in Blakely ports v. (2004). was a violation None convictions 403 L.Ed.2d criminal v. Shepard in Court’s Supreme plea collo theless, during his point no 13, 16, States, 125 S.Ct. 544 U.S. United object Turner sentencing did quy or his (2005)(holding 205 1254, 1257, 161L.Ed.2d PSR, in forth assertions set the factual convic that, past determining whether various of his descriptions including felony under as a Tur overruled The district court crimes. generally court “is ACCA, sentencing find factual adopted the objection, ner’s statutory defini examining the limited forth as set applications ings and guideline document, plea tion, charging written 188 PSR, Turner to and sentenced colloquy, and transcript plea agreement, low at the end imprisonment, months’ by the trial finding any explicit factuаl Had range. guideline the ACCA-enhanced assented”). defendant to which the judge enhance ACCA subject he not been § 2241 dismissed court The district would ment, sentence maximum Turner’s finding that jurisdiction, for lack petition 924(a)(2). § prison. years 10 have been be not cognizable was petition asserting again timely appealed, Turner savings satisfy the he did not cause affirmed, and Blakely challenge. We his held 2255(e). also district court § certiorari. Court denied Supreme procedur claim was Shepard that Turner’s Turner, Fed.Appx. 133 opportunity States had an he ally barred because Cir.) curiam), de (11th § cert. motion but 631, (per initial 2255 632 it in his to raise 302, 921, 163 followed. appeal nied, to do so. This 546 U.S. failed 2006, (2005). 21, July On L.Ed.2d 262 II. Discussion § 2255 motion pro se Turner filed attack sentence, two-pronged wages a aside, Turner vacate, his or correct set of his court’s dismissal the district upon argu- Blakely challenge and his renewing 1333 § petition. 2241 argues He first § that Be- 2241 if § 2255 remedy “is gay and other intervening changes in the inadequate or ineffective to test legali law since the disposition of his initial ty of 2255(e); § his detention.” see Sawyer § 2255 motion have rendered erroneous Holder, 1363, (11th 326 F.3d 1365 Cir. the violent enhancement 2003). he received The burden of demonstrating the under the argues, ACCA. He then pursu inadequacy or § ineffectiveness of the 2255 ant to Shepard, that the sentencing court remedy rests squarely on petitioner. erroneously upon relied police reports and (5th McGhee v. Hanberry, 10 arrest prove affidavits to the substance of Cir.1979) curiam).1 (per prior cоnvictions. We review novo de What, then, must a petitioner dem the availability of habeas relief under onstrate to open portal § 2241 Dohrmann v. United 442 through savings clause? F.3d Cir.2006), and “we have previously indicated that the may savings affirm for any reason supported by clause of may permit record, a petitioner even if not upon relied by the to bring a “1) claim under district court.” when: United States v. Al-Ari an, th[e] claim is upon based a retroactively curiam) (internal applicable Supreme decision; 2) (per Court quotation marks omitted). holding of Supreme Court decision petitioner establishes the was convicted for
1. The
§§
Intersection
of
2255 and
offense; and, 3)
nonexistent
circuit law
2241
squarely foreclosed such
claim
at the
time it otherwisе should have
“Typically,
been
collateral
raised
attacks on
in
trial,
the petitioner’s
validity
appeal,
of a federal
sentence
first
must be
§ 2255 motion.”
brought
Scott,
§
2255.”
Darby v.
177
Hawk-
Wofford
1236,
(11th Cir.1999).2
F.3d
Sawyer,
1244
Cir.2005)
944
Sitting
curiam).
banc, however,
en
(per
petitioner
recently
Once a
filed
retreated
has
§
motion,
his initial
the purported
however,
2255
he is
three-factor test enu
barred
making
irom
Wofford,
second
merated in
calling
dicta,”
and successive
it “only
motions except
carefully
explaining
in two
holding
“[t]he
delineated
actual
circumstances,
neither of
applies
which
decision ...
simply
is
that the
Wofford
2255(h)
here.
§
See 28
savings
U.S.C.
(requiring
clause does not cover sentence
the court of
to
claims
appeals
certify the
could
exis
have been
raised
earli
tence of
newly
either
discovered
er proceedings.”
States,
evidence
Gilbert v. United
or a new rule
of retroactively
640
applicable
(en
F.3d
1319
—
constitutional
before
petitioner
banc),
denied,
law
can
-,
cert.
U.S.
132
file
a second or successive
petition).
2255
(2012).
S.Ct.
Cir.2010) (quoting
James v. United
2. Violent Felonies
Under
ACCA
550 U.S.
1586, 1594, 167
(2007)).
L.Ed.2d 532
However,
The ACCA mandates a minimum sen-
[wjhen the law under which the defen-
tence of 15 yеars’ imprisonment
any
dant has been convicted contains statu-
defendant convicted of being a
felon
tory phrases
cover
several different
possession of a firearm and who has three
generic crimes, some of which require
previous convictions “for a violent felony
violent force
not,
some of
which do
or a
drug offense,
both,
serious
commit-
“modified
approach” ...
on
ted
occasions different from one anoth-
*8
permits a court to determine which stat-
924(e)(1).
§
er.”
A “violent felony” is
utory phrase
was
basis
con-
defined as:
viction
consulting the trial record—
[A]ny
punishable
crime
by imprisonment
including
documents,
charging
plea
for a term exceeding
year
one
...
agreements,
transcripts of plea cоllo-
that—
quies, findings of fact and conclusions of
trial,
law from a bench
(i)
jury instruc-
has
use,
as an
element
at-
tions
verdict forms.
use,
tempted
or threatened
of
use
physical
force
the person of
Johnson v.
133,
United
559 U.S.
another; or
1265, 1273,
130 S.Ct.
(2010);
176
1
L.Ed.2d
§
remedy
2255
inadequate
"was
or ineffective
"crime of violence”
purposes
of the career
legality
prisoner’s]
to test the
of [a
detention.”
offender
§of
enhancement
4B1.1 of the Unit-
2255(e).
Sentencing
(USSG),
ed States
Guidelines
"so
that
apply
decisions about one
to the other.”
4. The
of
felony”
definition
"violent
under
Gilbert,
1336 force—that violent force’ means 24, ‘physical at S.Ct. at 125 544 U.S. Shepard, see pain causing physical is, capable under any sentence “that (explaining 1262 Johnson, 130 person.” a to another showing injury that on a rest [must] the ACCA (and The original). in (emphasis ‘necessarily’ involved at 1271 S.Ct. prior conviction admitted) “enumerated facts” includes category necessarily second prior plea a extortion,” arson, felony). a violent “burglary, as crimes” sufficient here, explo- does where, petitioner use “involv[ing] [the] And and those 924(e)(2)(B)(ii). factual asser underlying Finally, under to the object sives.” PSR, they are deemed in “residual as the commonly contained a known tions what mak in upon relied may be those includes clause,” admitted violent See felony determination. the violent conduct ing involve[] “otherwise crimes that Rosales-Bruno, 676 F.3d v. States United potential presents serious Cir.2012); (11th States United 1020 Id. injury to another.” (11th Cir. Beckles, in re- decisions Supreme Several Court court 2009) district “the (explaining to the significantly have added years cent on undis findings may base its factual also determining in rely upon precedent PS[R], be found puted statements vio- as a given offense whether to which findings are they factual cause Begay example, For felony. lent assented”); United has the defendant presence explained Court Bennett, States v. arson, ex- burglary, enumerated offenses— curiam) (“[T]he district (per use involving the tortion, those crimes the undis relying on not err court did clause the residual explosives —before to deter PS[R] in Bennett’s puted facts residual implies that ACCA convictions were prior mine that enu- crimes those [to similar “covers therefore, and, the ACCA under felonies crime that merated], еvery rather than criminal.”); career an armed was he physi- risk of a serious ‘presents Wade, 458 F.3d States ” at 553 U.S. injury to another.’ cal Cir.2006) (“It this circuit is the law of original) (emphasis at of fact allegations object failure 924(e)(2)(B)(ii)). listed (quoting sentenc facts for admits those in a PS[R] continued, typically “all crimes, Court ing purposes.”). violent, aggressive purposeful, involve precise we determine Once 144-45, at 1586 Id. conduct.” previous upon which language omitted). The (internal quotation marks based, determine we then was conviction that, to requires design therefore statute’s at issue constitutes the crime whether listed, offenses crimes be similar 924(e)(2)(B). under of violence crime the re- as violent felonies classified Pur Alexander, F.3d at 1253-54. “pur- *9 also involve provision must sidual by 924(e), punishable crime any § suant to conduct.” violent, aggressive and poseful, a violent prison year more than Id. catego one of three it falls within felony if its years after Just three re First, is sometimes under what ries. aof somewhat Begay, the Court sounded clause,” a vio to as “elements ferred In case. in that its decision retreat from as “has any crime that lent includes ex- the Court Sykes use, use, attempted an element general, levels plained “[i]n physical use of threatened felo- 924(e)(2)(B)(i). crimes divide of another.” person provision] the residual ACCA, [under nies phrase “the context of the In the not,” those do and noted that “[t]he construes the record case this and sole decision ... in which risk was not the offenses for which he was un- sentenced — dispositive factor is Begay.” U.S. der the ACCA. The judge district -, 2267, 2275, 131 S.Ct. L.Ed.2d adopted the findings fact guideline (2011) (holding knowingly inten- calculations of the PSR. The PSR listed tionally fleeing in a vehicle from a law prior three violent felonies as the basis enforcement officer is a crime of violence for the (1) ACCA enhancement: Turner’s clause). Further, the residual for aggravated conviction assault and said, Begay’s Court violent, “purposeful, shooting (2) into an occupied building; and aggressive [language] has no precise 1986 conviction battery for on a en- law textual link to the residual clause” officer; (3) forcement his 1996 convic- marks “an addition to the text.” tion for aggravated battery. Therefore, (internal Id. quotation omitted). marks previous conviction for being a Furthermore, many “[i]n pur- cases the felon in possession of a firearm did poseful, violent, aggressive inquiry will serve as predicate for offense purposes be redundant risk, with the inquiry into enhancement, ACCA and his argu- crimes that fall within the former formula- ment in regard this must fail. Nonethe- present and those that poten- serious less, for the sake of completeness, we tial risks of injury to others tend proceed to examine each of predicate to be one and the same.” Id. offenses underlying Turner’s ACCA en- hancement in turn. recently enunciated our recon ciliation of these two seemingly inconsis A. Aggravated Assault and Shooting decisions,
tent
explaining: “Sykes makes
into an Occupied Building
clear
Begay’s
‘purposeful, violent, and
aggressive’ analysis does not apply to of
Turner’s convictions under Florida
fenses that are not
liability,
strict
negli
law for aggravated assault, Fla. Stat.
gence, or recklessness crimes.” United
§ 784.021, and shooting into an occupied
Chitwood,
States
building,
Fla.
790.19,
Stat.
arose from
—
Cir.),
denied,
cert.
U.S. -,
incident;
the same
if
therefore,
either con
(2012).
ent be done likely to damage is knowledge that in such fear well-founded which creates “ ‘[mjaliciously’ and person,” immi- some violence that such person other ... and intentionally, wrongfully, means § 784.011. Fla. Stat. nent.” damage injury or knowledge with the hand, the undis- at the facts Turning to or person to another may be caused will or reveal Turner in the PSR puted facts State person.” of another property the for assault aggravated of was convicted (Fla.2008). Kettell, 980 So.2d gun firing victim’s to the home going outside victim as he stood the twice at ap- categorical that under We think missed, one the second shots home. Both wantonly mali- or person when proach, through went the bullet narrowly, deadly missile any throws ciously or shoots the home. Nonethe- window of the front unoccupied— or building occupied any — con- of Turner’s less, underlying facts physical of risk potential is a serious there classify unnecessary to Florida viction are conduct bring such injury sufficient here, felony violent as assault aggravated clause. of the residual the ambit within terms, of- by its definitional (hold- Alexander, at 1258-59 F.3d See assault, an necessarily includes fense a firearm discharging crime of ing that intentional, by unlawful threat “an which is another 1000 feet of a vehicle within person to the do violence or act to word clause be- residual satisfies person ability another, apparent with an сoupled crime, the offend- cause, completing (emphasis supplied). Id. to do so.” an poses act that a deliberate er “performs Therefore, under section a conviction to innocent or death injury risk of obvious “as an element always include 784.021 will be- if the offender Even parties”). third use of ... threatened unoccupied, building to be lieves another,” person innocent occupant or likelihood 924(e)(2)(B)(i), Turner’s conviction by falling de- injured might passerby be as a qualifies thus assault aggravated Our real. itself—is the bullet bris —or ACCA.6 purposes violent similarity striking is fortified view analog closest and its this crime between for shoot Turner’s conviction offenses—that the enumerated among building also occupied ing into an explo- use of “involv[ing] the crime any Statute sec felony. Florida as a violent 924(e)(2)(B)(ii). crimes Both “[w]hoever, wan sives.” provides 790.19 tion of violent great within, necessarily involve at, or maliciously, tonly or shoots victims, offender, potential at, to the ... harm any [deadly] missile into, or throws both large, and community at building, within, any private public inor indifference a callousness guilty evince ... shall be unoccupied occupied suffering strikes for human of section For felony.” purposes of a sentencing. United purposes of felony for tradi- qualify under the it did not Even if 6. Garcia, F.3d convic- approach, Turner’s v. Palomino categorical States tional Cir.2010); certainly qualify also would see case this 1331-32 approach. PSR 1243 n. 5 Lockley, the modified States was convicted of doubt that Turner leaves no 'violent fel- (“Though ACCA’s dead- a firearm—a carried out with an assault career and the Guidelines’ ony’ enhancement that assault we held ly have weapon in their slightly differ enhancement —and offender in “the deadly weapon is included with a analysis to the same wording, apply 'aggravated assault’ as to so generic crime of both.”). ” or a 'crime violence’ *11 at the heart of what the sion, then, ACCA was de- whether we analyze Turner’s signed encapsulate. Alexander, 609 conviction for aggravated assault or shoot- (“The F.3d at 1257 firing of weapon ing into an occupied building point is a poses a risk bystander that a in- will be difference, without a because under either bullet.”). jured by stray These consider- mode of analysis, all Rome, roads lead to ations compel the conclusion that a viola- and the district properly court’s included tion of 790.19, Florida Statute section as a these convictions as predicate the first of- categorical matter, falls within ACCA’s fense for Turner’s ACCA enhancement. definition of a violent felony. B. Battery on a Law Enforcement Of- if Even it did not qualify under ficer categorical traditional approach, Tur In Florida, a person commits a ner’s conviction for shooting into an occu “(1) battery if he: Actually and intentional pied building would still constitute a vio ly touches or strikes another person lent felony under the modified categorical other; the will (2) of the or Inten approach. The PSR reveals that Turner tionally сauses bodily harm to per another shot that, at a man twice upon missing son.” 784.03(l)(a). Fla. Stat. Though
him, the second bullet entered the front
battery is ordinarily misdemeanor,
bat
window of the man’s home. Turner’s con
tery against a law-enforcement officer is a
viction therefore necessarily includes the
felony.
784.07(2)(b).
Fla.
Stat.
wanton or
firing
malicious
of a gun at an
occupied building.
Supreme
The
Court
Supreme
recently
Court
held that
opined
has
the ACCA’s residual
Florida’s
battery offense is not cate-
clause is intended to
pen
ensure increased
gorically a crime of violence under the
apply
alties
to those individuals who “show ACCA’s elements
Johnson,
clause. See
an increased likelihood that the offender is 130 S.Ct.
1274.
at
The Court explained
the kind
person
might
who
deliberately
that because the statute could be violated
point the gun
pull
the trigger.”
(1)
Be
by:
“[actually
intentionally
gay,
1340 and negligence, liability, strict of law confines bаttery on a conviction therefore, offenses; neither from recklessness case stems in this officer enforcement Florida analysis our impacts officers opinion he fled in which incident clause. residual under the and drug battery transaction statute apparent after an wall, n. 5. against a 685 id. at an officer See ultimately pushed modified Under her hand. injuring have circuits sister our Two of officer pushing categorical approach, battery involving offenses that similar held force with sufficient the wall against constitute enforcement officer a law on “[ajctual likely constitutes her wrist injure under felonies or violent of violence crimes strik[ing]” offi ... intentionally ly and v. States See United clause. the residual of as a crime qualifies thеrefore cer and (1st Cir.), 455, 469-70 640 F.3d Dancy, clause the elements under violence — U.S. -, denied, cert. (explaining at 1273 See id. ACCA. (2011) as (holding that L.Ed.2d 407 181 noting and approach categorical modified is a officer battery police on a and sault ob past Government has “the the ACCA felony under violent Armed Ca under the convictions tained poses a serious nearly always the “crime (cit using approach Act” reer Criminal physical of actual Robledo-Leyva, v. States ing United (in injury” physical the likelihood Cir.2009) (5th cu- (per 859, 862 Fed.Appx. omitted)); United marks quotation ternal riam) the modified (adopting Williams, F.3d States battery on a that Florida to hold approach Cir.2009) a battery on (10th (finding that vio crime of officer is law enforcement be of violence crimе officer was police lence); Luque-Barahona, States an overt act it “involves cause Cir.2008) (af Fed.Appx. initiating only thereby not police on state court’s reliance officer— firming district esca confrontation, a serious risking but “pushed had defendant in PSR that ment original)). (emphasis in violence” lation that conviction to find police officer” today. so hold expressly them join law enforcement battery on a Florida greater view, present crimes violence))). In our few a crime was officer injury to anoth physical risk of “potential Furthermore, con- even if Turner’s enforcement battery on a law than er” the elements qualify not under did viction un officer, necessarily involves an which same, be- clause, would be our result confron of—and touching wanted law battery enforce- on Florida cause 924(e); law. officer with—an tation felo- as a violent officer ment also (explaining at 2273 Sykes, 131 see See Rozier the residual clause. ny under felo an enumerated burglary, v. United ACCA, be dangerous “is ny under unpub- previous, our (explaining leading to in confrontation it can end cause although defen- holding [the “that lished cre violence”). charged environment battery a law enforce- on Florida dant’s] confronts physically a citizen when ated as a qualify not did ment officer conviction laden keg, powder is a verifiable police the elements under of violence crime defendant, officer, the danger with 4B1.2(a)(l), it did §of clause alike. bystanders innocent the residual of violence crime espe Williams, That is at 1149. Rozier, the clause”). plain made As we is an of force that “the use given cially so addressed Johnson law enforce of a necessary part 924(e)(2)(B), expected, Be- elements subduing and secur- task of ment officer’s the narrow apply outside does gay *13 ing suspected individuals of committing physical confrontation, a crime that a Ferraro, crimes.” Lee v. involves very confrontation fortiori (11th Cir.2002). Indeed, an officer with police is assuredly most a violent faced physical with resistance only is not felony, too.
authorized, but is often duty-bound, to ef- Aggravated C. Battery fectuate an arrest of that individual. See (“While Dancy, 640 at pri- Having determined that Turner’s mary risk of and battery [assault on a first two convictions qualify as violent felo is to police the officer officer] who is occu- ACCA, nies under the his final predicate with his pied or her duties public, aggravated conviction—for battery —falls there is also a great risk to the defendant neatly place. Florida, into In person a whose interference with police is likely commits aggravated battery by committing provoke response of decisive force (1) a battery: that intentionally or know calibrated to end the matter quickly and ingly great causes bodily harm, permanent prevent the assailant from getting control (2) disability, or disfigurement; while us of the officer or his or her weapon or ing (3) deadly weapon; or upon a victim otherwise injuring the оfficer bystand- whom the offender knows to be pregnant. ers.”). Therefore, and because the risk of Fla. Stat. 784.045. physical serious injury attendant to bat- We need not belabor point here tery on a law enforcement officer renders because Turner’s conviction—-which potential
the crime a
hotbed of melee and stemmed from his stabbing man in
violence, it easily qualifies as a violent
chest—is indubitably a
felony
violent
un-
felony under the ACCA’s residual clause. der the elements clause. Using the modi-
Supreme
Court’s recent decision in
fied
approach,
because the
Sykes confirms our
regard.
view this
victim of the
male,
crime was a
we can rule
Sykes, the Court held that
flight
vehicular
out battery upon pregnant
female as the
from a law enforcement officer was a vio- basis for Turner’s conviction. That leaves
felony
lent
clause,
under the residual
potential
two
bases for Turner’s con-
because
part
viction,
“[c]onfrontation
police
with
one of which involves the intention-
expected
result
flight.
vehicle
It
al or knowing
great
causation of
bodily
places property and persons
harm,
at serious risk
and the other which involves the use
injury.”
Ultimately, and the enhancements guideline predi- note court the district tions used underlying enhance- ACCA guideline sentences cate offenses shooting donkeys *14 assault ducks aggravated crimes—like —are ment — a law battery on building, therefore, not occupied and, an should things, into the same officer, bat- aggravated enforcement Tell this same. be treated violent qualified as properly tery factually inno- literally who is petitioner —were Begay no discern felonies. error — sentencing enhancement —that cent sentence. otherwise—in been, guilty not, he ever is, nor has he is Tell him that felonies. prior violent three Conclusion III. beyond is thе enhancement error in Gilbert, question open left we a duck not a it is fix because power to our open portal could a petitioner whether donkey. § 2255 clause of savings § 2241 via the and don- ducks between Distinguishing Begay showing “pure make if he could when, be- meaningless exercise keys is is, that errors showing error” —that curtain, government. are both felo- hind of the ACCA’s application unlawfully de- government the defendant “resulted in It is ny enhancement applies it imprisonment liberty to a term of our when us of being prives sentenced been the would have what It is to a sentence. that exceeded invalid enhancement the error.” maximum without statutory to do so is forbidden government again Gilbert, n. 20. We at 1319 by the Constitution. today. In- unanswered question
leave peo- can incarcerate government If our show has failed to stead, Turner because beyond that provided ple for time under sentenced improperly that he was the incarcera- we call simply law because instance, have no first the ACCA is no donkey, there of a instead tion duck whether, he made had to decide occasion depriva- guarantee constitutional him to would enable showing, it such country. liberty in this savings clause. bring petition- come when day will Perhaps the error Begay showing pure makes a
er open left question to render
sufficient day, That for decision. ripe
by Gilbert
however, today.
AFFIRMED. concurring:
HILL, Judge, Circuit this circuit the law of
I concur separately I I must. write
requires in footnote expressed the idea
endorse “literally” inadequate § 2255 is an errone- legality test the ineffective NGUYEN, Representa- KIEU CHAU sentence in ACCA-enhanced ously imposed Nguyen, and the Dung Es- Kim tive of maximum, thereby excess of the Trung Nguyen, Plain- Luong tate of relief under to habeas opening portal however, tiff-Appellant, myself, I § 2241. disassociate