USCA11 Case: 23-10337 Document: 16-1 Date Filed: 08/07/2023 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10337
Non-Argument Calendar
____________________
JOSEPH R. DICKEY,
Petitioner-Appellant,
versus
FCI MARIANNA WARDEN,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:22-cv-00084-TKW-ZCB
____________________
USCA11 Case: 23-10337 Document: 16-1 Date Filed: 08/07/2023 Page: 2 of 5
2 Opinion of the Court 23-10337
Before WILSON, JORDAN, and BLACK, Circuit Judges.
PER CURIAM:
Joseph Reuben Dickey appeals following the district court’s
dismissal of his pro se petition 1 for habeas relief, filed pursuant to
28 U.S.C. § 2241, and the denial of his post-judgment motion for
reconsideration. FCI Marianna Warden (the Government), in
turn, moves for summary affirmance and to stay briefing. After
review, we grant the Government’s motion for summary affir-
mance.
Under
28 U.S.C. § 2241, a prisoner may receive habeas relief
if he is “in custody in violation of the Constitution or law or treaties
of the United States.”
28 U.S.C. § 2241(c)(3). A federal prisoner
may attack his convictions and sentences through § 2241 under the
“savings” clause of
28 U.S.C. § 2255 if a remedy under § 2255 is
inadequate or ineffective.
28 U.S.C. § 2255(e). However, proce-
dural bars, such as the restriction on successive § 2255 motions, 2 do
not make § 2255 inadequate or ineffective. See Wofford v. Scott,
177
F.3d 1236, 1245 (11th Cir. 1999), overruled on other grounds by
1 We liberally construe pro se pleadings. See United States v. Cordero,
7 F.4th
1058, 1068 n.11 (11th Cir. 2021).
2 Ordinarily, a federal prisoner who wishes to file a second or successive mo-
tion to vacate, set aside, or correct sentence is required to move the court of
appeals for an order authorizing the district court to consider such a motion.
See
28 U.S.C. § 2255(h), cross-referencing
28 U.S.C. § 2244. A claim presented in
a second or successive post-conviction proceeding that was presented in a
prior application, however, “shall be dismissed.”
28 U.S.C. § 2244(b)(1).
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23-10337 Opinion of the Court 3
McCarthan v. Dir. Of Goodwill Indus.-Suncoast, Inc.,
851 F.3d 1076,
1100 (11th Cir. 2017) (en banc).
Summary affirmance is warranted. See Groendyke Transp.,
Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969) 3 (explaining sum-
mary disposition is appropriate where “the position of one of the
parties is clearly right as a matter of law so that there can be no
substantial question as to the outcome of the case, or where, as is
more frequently the case, the appeal is frivolous”). First, Dickey’s
requested relief―that § 2244(b)(1) be declared as unconstitutional
“as applied” to him―falls outside the scope of a § 2241 petition.
The purpose of § 2241 is to allow a prisoner to challenge the exe-
cution of his sentence, and as the district court acknowledged, even
if it granted Dickey the declaratory relief that he sought, his total
sentence would remain unchanged. See Antonelli v. Warden, U.S.P.
Atlanta,
542 F.3d 1348, 1351 n.1, 1352 (11th Cir. 2008) (stating § 2241
provides a limited basis for habeas actions for federal prisoners in
that it allows prisoners to attack the execution of a sentence rather
than the sentence or conviction themselves).
Moreover, Dickey provided no explanation as to why he
was eligible for § 2241 relief under § 2255’s “savings” clause. Dickey
failed to argue or show that a remedy under § 2255 was inadequate
or ineffective.
28 U.S.C. § 2255(e). The primary justification that
Dickey asserted for bringing a § 2241 petition, as opposed to a
3 In Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit
handed down prior to close of business on September 30, 1981.
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4 Opinion of the Court 23-10337
§ 2255 motion, was based on § 2244(b)(1)’s bar on previously
brought claims in successive applications. Specifically, in his peti-
tion, he asserted he was “without any realistic access to habeas cor-
pus based on new evidence,” and he had “new evidence of inno-
cence and constitutional violations which can never be addressed
because of the erroneous unconstitutional application of
[§] 2244(b)(1).” This Court, however, has held that § 2244(b)(1)’s
bar on successive applications does not make pursuit of relief under
§ 2255 inadequate or ineffective. Wofford,
177 F.3d at 1245. Dickey,
therefore, also failed to demonstrate he was eligible for § 2241 relief
under § 2255’s “savings” clause. See McGhee v. Hanberry,
604 F.2d 9,
10 (5th Cir. 1979) (stating a petitioner bears the burden of demon-
strating eligibility under the “savings” clause of § 2255).
Even if Dickey’s claim fell within the scope of § 2241, bind-
ing precedent foreclosed both of his underlying arguments. Alt-
hough he contended that § 2244(b)(1)’s bar did not apply to § 2255,
this Court is bound to its prior panel decision where we held that
the bar does apply to § 2255 motions. See In re Bradford,
830 F.3d
1273, 1277-78 (11th Cir. 2016) (clarifying that § 2244(b)(1)’s require-
ment is jurisdictional and holding § 2244(b)(1) applies to § 2255 mo-
tions); In re Baptiste,
828 F.3d 1337, 1339-40 (11th Cir. 2016) (holding
§ 2244(b)(1)’s mandate applies to applications for leave to file a sec-
ond or successive § 2255 motion); United States v. Steele,
147 F.3d
1316, 1317-18 (11th Cir. 1998) (stating under our prior panel prece-
dent rule, a prior panel’s holding is binding unless it has been over-
ruled or abrogated by the Supreme Court or by this Court sitting
en banc).
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23-10337 Opinion of the Court 5
Similarly, the Supreme Court has held that § 2244(b)(1) does
not violate the Suspension Clause.4 See Felker v. Turpin,
518 U.S.
651, 664 (1996) (holding § 2244(b)(1)’s “restrictions . . . do not
amount to a ‘suspension’ of the writ contrary to [the Suspension
Clause]”). Despite Dickey’s classification of his claim as an “as ap-
plied” challenge, such a classification does not change Felker’s ap-
plication to his case when Felker’s rule is equally applicable across
all habeas cases. See id. Therefore, his underlying arguments are
foreclosed by binding precedent. 5
Accordingly, because the Government’s position is clearly
correct as a matter of law, we GRANT the Government’s motion
for summary affirmance and DENY as moot its motion to stay the
briefing schedule. Groendyke Transp., Inc.,
406 F.2d at 1162.
AFFIRMED.
4 The Constitution’s Suspension Clause provides that “[t]he Privilege of the
Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebel-
lion or Invasion the public Safety may require it.” U.S. Const. art. I, § 9, cl. 2.
5 Although Dickey also appealed the district court’s denial of his motion for
reconsideration, he does not address the motion on appeal, and any related
argument is accordingly abandoned. See Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 681 (11th Cir. 2014). He also mentions that § 2244(b)(1) violates
the separation of powers, but he failed to preserve such an argument for ap-
pellate review by not raising it before the district court. See United States v.
Edwards,
728 F.3d 1286, 1295 (11th Cir. 2013).
