Nataska Howard v. Warden , 580 F. App'x 728 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-12274
Non-Argument Calendar
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D.C. Docket No. 4:10-cv-00408-MP-CAS
NATASKA HOWARD,
Petitioner-Appellant,
versus
WARDEN,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Florida
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(September 10, 2014)
Before PRYOR, MARTIN, and FAY, Circuit Judges.
PER CURIAM:
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Nataska Howard, a federal prisoner proceeding pro se, appeals the district
judge’s dismissal of her petition for writ of habeas corpus under 28 U.S.C. § 2241.
We affirm.
I. BACKGROUND
On March 7, 2006, Howard was arrested for her participation in distributing
narcotics. See United States v. Howard, 252 F. App’x 955, 957 (11th Cir. 2007)
(per curiam) (providing the factual background for Howard’s arrest). Following a
jury trial, Howard was convicted of one count of conspiracy to possess with intent
to distribute five or more grams of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B), 846, and one count of possession with intent to distribute
five or more grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B). Based on her status as a career offender, Howard received concurrent
30-year sentences on each count under U.S.S.G. § 4B1.
We affirmed on direct appeal,. Howard, 252 F. App’x at 962. Howard
challenged the use of a prior state conviction as a career-offender predicate crime.
We rejected her argument and concluded, because she had failed to object to
various presentence-investigation-report provisions, Howard had admitted facts
sufficient to show the prior crime was a career-offender-predicate crime of
violence. Id. at 959-61 & n.2. In 2008, Howard filed a habeas petition under 28
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U.S.C. § 2255, which the district judge denied. Both the district judge and this
court denied Howard’s requests for a certificate of appealability.
Howard filed a petition under § 2241 in 2010. Under the Fair Sentencing
Act of 2010 (“FSA”) § 2a, Pub. L. No. 111-220, 124 Stat. 2372,1 she argued she
was actually innocent of her sentences, which were based on pre-FSA disparities
between powder and crack-cocaine sentences. Howard further contended she was
actually innocent of her career-offender status, because several of her prior
convictions did not qualify as career-offender predicate crimes. She asserted her
predicate crimes had been established with improper documents, in violation of
Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005), and Taylor v.
United States, 495 U.S. 575, 110 S. Ct. 2143 (1990). She further argued her 30-
year sentences had been improperly enhanced under 21 U.S.C. § 851, based on a
prior non-felony marijuana conviction. Howard argued she was entitled to § 2241
relief under the 28 U.S.C. § 2255(e) “savings clause,” because (1) she previously
had filed a § 2255 motion; (2) her claims did not rely on newly discovered
evidence or new rules of constitutional law; and (3) therefore, a successive § 2255
motion would be inadequate to test the illegality of her detention.
The district judge characterized Howard’s § 2241 petition as an attempt to
circumvent the restrictions on successive § 2255 motions. The judge dismissed the
1
The FSA reduced the “100–to–1 crack-to-powder ratio to 18–to–1.” Dorsey v. United
States, 132 S. Ct. 2321, 2329 (2012).
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petition and concluded (1) the FSA did not apply retroactively; (2) Howard could
not satisfy the § 2255(e) savings clause, because her sentences did not exceed the
statutory maximums for her convictions; and (3) her actual-innocence claim was
misplaced, because she was not charged with, or convicted of, being a career
offender.
On appeal, Howard argues the district judge erred when he dismissed her
§ 2241 petition. She contends several recent Supreme Court cases established she
was convicted of a nonexistent crime—her career-offender designation. She
further argues barring her from § 2241 relief will violate the Suspension Clause,
U.S. Const. Art. I, § 9. 2
II. DISCUSSION
We review de novo whether a prisoner may bring a § 2241 petition under the
§ 2255(e) savings clause. Bryant v. Warden, FCC Coleman-Medium, 738 F.3d
1253, 1262 (11th Cir. 2013). When a conviction has become final, a federal
prisoner usually may challenge the legality of her detention only through a § 2255
motion. Id. at 1256. When a prisoner previously has filed a § 2255 motion, she
must apply for and receive permission from this court before filing a successive
2
The Suspension Clause provides: “The Privilege of the Writ of Habeas Corpus shall not
be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
U.S. Const. Art. I, § 9.
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§ 2255 motion. See 28 U.S.C. § 2255(h) (cross-referencing id. § 2244); Bryant,
738 F.3d at 1260.
Section 2241 habeas petitions generally are reserved for challenges to the
execution of a sentence or the nature of confinement, not the validity of the
sentence itself or the fact of confinement. Bryant, 738 F.3d at 1288. Howard,
however, may file a § 2241 petition if she meets her burden of showing that a
§ 2255 motion was “inadequate or ineffective to test the legality of [her]
detention.” 28 U.S.C. § 2255(e). Whether the § 2255(e) savings clause may “open
the portal” to a § 2241 petition is a jurisdictional issue that must be decided before
addressing the merits of a petitioner’s claims. Bryant, 738 F.3d at 1262 (citing
Williams v. Warden, 713 F.3d 1332, 1337-40 (11th Cir. 2013)).
The restrictions on filing successive § 2255 motions do not render a § 2255
remedy “inadequate or ineffective” for purposes of the § 2255(e) savings clause.
See id. at 1267 (citation and internal quotation marks omitted). To show a prior
§ 2255 motion was inadequate or ineffective to test the legality of her detention, a
petitioner asserting a sentencing-error claim must establish (1) binding circuit
precedent squarely foreclosed the claim during the petitioner’s sentencing, direct
appeal, and first § 2255 proceeding; (2) after the petitioner’s first § 2255
proceeding, a United States Supreme Court decision overturned that circuit
precedent; (3) the rule announced in that Supreme Court decision applies
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retroactively on collateral review; and (4) as a result of that new rule, the
petitioner’s sentence exceeds the statutory maximum authorized by Congress. See
id. at 1274, 1281. The savings clause does not reach Guidelines-error sentencing
claims brought by a prisoner whose sentence does not exceed the statutory
maximum. See Bryant, 738 F.3d at 1264 (citing Gilbert v. United States, 640 F.3d
1293, 1295, 1301-03 (11th Cir. 2011) (en banc)).
The restrictions on filing successive § 2255 motions also do not violate the
Suspension Clause, because they (1) simply transfer from the district court to the
court of appeals a screening function that previously would have been performed
by the district judge; and (2) do not deprive the Supreme Court of jurisdiction to
entertain original habeas petitions. See Felker v. Turpin, 518 U.S. 651, 661-62,
664, 116 S. Ct. 2333, 2339-40 (1996) (addressing successive 28 U.S.C. § 2254petitions); see also 28 U.S.C. § 2241(a).
In her § 2241 petition, Howard sought to attack the validity of her sentence,
and not its execution; therefore, § 2255 was the appropriate statute for her claims.
See Bryant, 738 F.3d at 1288. To bring her claims via a § 2241 petition, Howard
was required to show § 2255 was inadequate or ineffective to test the legality of
her detention. See 28 U.S.C. § 2255(e); Bryant, 738 F.3d at 1256, 1262.
After being convicted of one count of conspiracy to possess with intent to
distribute five or more grams of cocaine base, in violation of 21 U.S.C.
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§§ 841(a)(1), (b)(1)(B), 846, and one count of possession with intent to distribute
five or more grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B), Howard was sentenced to concurrent 30-year imprisonment sentences on
each count. The statutory maximum sentence for a violation of § 841(a)(1),
(b)(1)(B) committed after one has sustained a prior conviction for a felony drug
offense is life imprisonment. 21 U.S.C. § 841(b)(1)(B). Absent a prior felony
drug conviction, the statutory maximum sentence for a § 841(a)(1), (b)(1)(B)
violation is 40 years of imprisonment. Id. The statutory maximum sentences for
violations of § 846, where the object of the conspiracy was a violation of
§ 841(a)(1), (b)(1)(B), are the same. See 21 U.S.C. § 846. Howard’s 30-year
sentences do not exceed her statutory maximums, regardless of whether the district
judge erred when he determined she was a career offender, improperly subjected
her to enhanced sentences for having a prior felony drug conviction, or violated
Shepard. See 21 U.S.C. §§ 841(b)(1)(B), 846. Therefore, the § 2255(e) savings
clause does not apply to her sentence-enhancement or career-offender claims. 3 See
3
Howard also asserts this court’s decisions in Spencer v. United States, 727 F.3d 1076(11th Cir. 2013), vacated pending reh’g en banc, (11th Cir. Mar. 7, 2014), and Zack v. Tucker,
704 F.3d 917 (11th Cir.) (en banc), cert. denied, 134 S. Ct. 156 (2013), support her various
claims. Contrary to Howard’s arguments, our decisions in Spencer and Zack do not support her
claim that she was sentenced above the statutory maximums. See Spencer, 727 F.3d 1076(addressing, in an initial, timely filed § 2255 motion, a claim that a new, retroactively applicable
Supreme Court decision rendered the petitioner’s career-offender status erroneous, without any
discussion of the applicable statutory maximum sentence); Zack, 704 F.3d 917 (recognizing the
statute of limitations for habeas petitions applies on a claim-by-claim basis, without any
discussion of statutory maximum sentences).
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Bryant, 738 F.3d at 1264 (“We [have] held definitively that the savings clause does
not reach a guidelines-error sentencing claim when the prisoner’s sentence does
not exceed the statutory maximum.” (citing Gilbert, 640 F.3d at 1295)).
Howard’s claims that she is actually innocent of being a career offender and
was convicted of the “nonexistent offense” of being a career offender also do not
change the result here. See Bryant, 738 F.3d at 1285 (“[O]ne cannot be actually
innocent of a sentencing enhancement.”); Gilbert, 640 F.3d at 1320 (rejecting the
petitioner’s claim that he was actually innocent of being a career offender, because
he was neither charged with, nor convicted of, being a career offender). Howard’s
claim of a purported Suspension Clause violation likewise does not entitle her to
relief, because the claim ultimately rests on the restrictions on filing successive
§ 2255 motions. See Felker, 518 U.S. at 661-62, 664, 116 S. Ct. at 2339-40.
Even if a claim based on the FSA were cognizable under the § 2255(e)
savings clause, the FSA does not apply to defendants, like Howard, who were
sentenced before its August 3, 2010, enactment. See United States v. Berry, 701
F.3d 374, 377 (11th Cir. 2012) (per curiam) (affirming the denial of a § 3582(c)(2)
motion for a sentence reduction). Accordingly, Howard has not shown the district
judge erred in dismissing her § 2241 petition.
AFFIRMED.
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