Luis H. Cano v. Warden, FCC Coleman - USP I , 358 F. App'x 107 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Dec. 23, 2009
No. 09-14176 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 09-00298-CV-OC-10-GRJ
LUIS H. CANO,
Petitioner-Appellant,
versus
WARDEN, FCC Coleman - USP I,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 23, 2009)
Before BLACK, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Luis H. Cano, a pro se federal prisoner, appeals the district court’s dismissal
of his petition for habeas corpus. After review, we affirm.1
In 1998, Cano was convicted of 69 counts related to a nationwide cocaine
and marijuana trafficking and money laundering network. The district court
sentenced Cano to one mandatory life sentence, twelve concurrent life sentences,
and fifty-six concurrent sentences of 240 months’ imprisonment. Cano appealed to
this Court, which vacated his conviction on one count of possession with intent to
distribute marijuana and affirmed his convictions on the other 68 counts. United
States v. Cano, 289 F.3d 1354 (11th Cir. 2002). In November 2004, Cano filed in
the district court a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. In
October 2008, the district court denied Cano’s § 2255 motion.
In July 2009, Cano filed this petition, which he purported to bring under the
“1940th edition of 28 U.S.C. § 451 et seq.,” sections of the United States Code
predating 28 U.S.C. §§ 2241 and 2255. Cano argued for collateral relief on two
grounds attacking the jurisdiction of the district court over his criminal
prosecution. The district court construed Cano’s filing as a 28 U.S.C. § 2241
petition and dismissed it because Cano previously had been denied § 2255 relief
and § 2255’s savings clause did not apply. Cano filed this appeal.
Typically, collateral attacks on the validity of a federal conviction or
1
The availability of habeas relief under § 2241 presents a question of law that we review
de novo. Cook v. Wiley, 208 F.3d 1314, 1317 (11th Cir. 2000).
2
sentence must be brought under § 2255. Sawyer v. Holder, 326 F.3d 1363, 1365
(11th Cir. 2003). Under limited circumstances, however, a provision of § 2255
permits a federal prisoner to file a habeas petition pursuant to § 2241. See 28
U.S.C. §§ 2241(a), 2255(e). That provision, known as the “savings clause,”
permits a federal prisoner to file a § 2241 petition if an otherwise available remedy
under § 2255 is “inadequate or ineffective to test the legality of [a defendant’s]
detention.” 28 U.S.C. § 2255(e).
When a prisoner previously has filed a § 2255 motion to vacate, he must
apply for and receive permission from this Court before filing a successive § 2255
motion. 28 U.S.C. §§ 2244(b)(3), 2255(h). Such restrictions on successive § 2255
motions, standing alone, do not render that section “inadequate or ineffective”
within the meaning of the savings clause. Wofford v. Scott, 177 F.3d 1236, 1245
(11th Cir. 1999). Thus, the savings clause does not permit a prisoner to circumvent
the requirements for filing a § 2255 motion merely by filing a § 2241 petition. Id.
In Wofford v. Scott, this Court established that § 2255’s savings clause
applies only when: (1) the petitioner’s claim is based on a retroactively applicable
Supreme Court decision; (2) the holding of that decision established that the
petitioner was convicted of a “nonexistent offense”; and (3) “circuit law squarely
foreclosed such a claim at the time it otherwise should have been raised in the
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petitioner’s trial, appeal, or first § 2255 motion.” Id. at 1244. In order for a
petitioner to avail himself of the § 2241 remedy, all three Wofford criteria must be
met. See id. at 1244. A petitioner may not argue issues raised in his petition until
he has “open[ed] the portal” to § 2241 by demonstrating that the savings clause
applies. See id. at 1244 n.3.
Here, Cano is precluded from seeking relief under § 2241 because § 2255’s
savings clause does not apply.2 Cano already has filed a prior § 2255 motion that
was denied. On appeal, Cano does not make any argument that his claims are
based on a retroactively applicable Supreme Court decision, much less one that
might establish that he was convicted of nonexistent offenses. Thus, Cano has not
satisfied the first prong of the Wofford test. Because Cano has not shown the
applicability of § 2255’s savings clause, we, like the district court before us, do not
consider the merits of Cano’s habeas petition.
Cano argues that he was entitled to a hearing on the merits because his
claims involved jurisdictional defects that cannot be precluded. Under Wofford,
even if a petitioner claims the district court lacked jurisdiction in the underlying
criminal proceeding, the petitioner cannot avail himself of the § 2241 remedy
unless the savings clause criteria are met. See Wofford, 177 F.3d at 1238
2
We find meritless Cano’s argument that §§ 2241 and 2255 were invalidly enacted and,
therefore, that the district court erred in construing his petition as one brought under § 2241.
4
(applying the Wofford criteria to a claim that the trial court lacked jurisdiction to
impose petitioner’s sentence). Thus, we do not address Cano’s claims that the trial
court lacked jurisdiction in his underlying criminal proceedings.
Because § 2255’s savings clause does not apply, the district court properly
dismissed Cano’s habeas petition.
AFFIRMED.
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