Albert Williams v. Warden, Federal Bureau of Prison

                Case: 11-13306       Date Filed: 04/11/2013       Page: 1 of 51


                                                                                    [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 11-13306
                               ________________________

                       D.C. Docket No. 2:10-cv-00180-LGW-JEG



ALBERT WILLIAMS,

                                                                        Petitioner - Appellant,

                                             versus

WARDEN,
FEDERAL BUREAU OF PRISONS,

                                                                    Respondents - Appellees.

                               ________________________

                      Appeal from the United States District Court
                         for the Southern District of Georgia
                            ________________________

                                       (April 11, 2013)

Before MARCUS and MARTIN, Circuit Judges, and GOLD, * District Judge.

MARCUS, Circuit Judge:




*
  Honorable Alan S. Gold, United States District Judge for the Southern District of Florida,
sitting by designation.
              Case: 11-13306     Date Filed: 04/11/2013    Page: 2 of 51


      Albert Williams appeals the dismissal of his 

28 U.S.C. § 2241

 petition for

habeas corpus, claiming that his 293-month sentence for a violation of 

18 U.S.C. § 922

(g)(1) and the Armed Career Criminal Act of 1984 (“ACCA”), 

18 U.S.C. § 924

(e), was improper because he did not have the three violent felony predicates

required to apply the ACCA enhancement. Without that enhancement, a

§ 922(g)(1) offense carries a ten-year maximum sentence. At issue is whether the

savings clause of 

28 U.S.C. § 2255

(e) allowed the district court to entertain

Williams’s § 2241 petition and, if it did, whether Williams’s 1989 and 1990

burglary convictions are proper ACCA predicates.

      Notwithstanding the bar on second or successive § 2255 motions, § 2255’s

savings clause permits a court to entertain a § 2241 habeas petition challenging the

legality of a prisoner’s detention when the prisoner’s “remedy by [§ 2255] motion

is inadequate or ineffective to test the legality of his detention.” 

28 U.S.C. § 2255

(e). At the time of Williams’s direct appeal and first § 2255 motion, there

was no circuit precedent that foreclosed him from raising the claim that his

burglary convictions should not count as violent felonies, and in fact he did raise it.

In these circumstances, his direct appeal and first collateral attack were not

inadequate or ineffective to test the legality of his detention, and the savings clause

does not apply. We conclude that the district court lacked subject-matter

jurisdiction to entertain Williams’s § 2241 petition and, therefore, affirm.


                                           2
              Case: 11-13306     Date Filed: 04/11/2013   Page: 3 of 51


                                          I.

      Williams has an extensive criminal history, of which four incidents are

relevant to this appeal. In 1986, he pleaded guilty to one count of robbery and two

counts of aggravated assault stemming from a single incident. In 1989, he pleaded

nolo contendere to burglary of a dwelling, a second-degree felony pursuant to 

Fla. Stat. § 810.02

. In 1990, he again committed burglary of a dwelling; this time, he

pleaded guilty to the offense.

      Finally, the criminal offense that led to the sentence now before us occurred

in 1997, when Miami police officers investigating suspected narcotics activity

encountered Williams. After a brief conversation, Williams drew a gun on the

officers, who disarmed him.

      Williams was indicted in the U.S. District Court for the Southern District of

Florida for being a felon in possession of a firearm, in violation of 

18 U.S.C. § 922

(g)(1). Before trial, the government filed a notice of intent to seek the penalty

enhancement authorized by the Armed Career Criminal Act, which imposes a

minimum sentence of fifteen years and a maximum of life imprisonment for a

violation of § 922(g)(1) by a person who has three prior convictions for a violent

felony or a serious drug offense. Williams was tried and convicted of the

§ 922(g)(1) offense in 1998.




                                          3
              Case: 11-13306     Date Filed: 04/11/2013   Page: 4 of 51


      Williams’s Presentence Investigation Report (“PSR”) recommended

applying the ACCA enhancement based on his robbery and burglary convictions.

Applying this enhancement, the PSR determined that Williams had an offense

level of 33 and a criminal history category of VI. Under the then-mandatory

Sentencing Guidelines, his guideline range was 235 to 293 months. During his

sentencing, Williams did not object to the ACCA enhancement based on the theory

that his prior offenses did not qualify as violent felonies. He received a prison

sentence of 293 months. On direct appeal, he also did not raise an objection to the

ACCA enhancement. This Court affirmed Williams’s conviction and sentence.

United States v. Williams, 

182 F.3d 936

 (11th Cir. 1999) (unpublished table op.).

      Several failed collateral attacks followed. Williams first sought

postconviction relief pursuant to 

28 U.S.C. § 2255

, arguing that he received

ineffective assistance of counsel because his attorney had failed to object to the use

of Williams’s burglary convictions as predicate offenses to support the ACCA

enhancement. He also argued that the Florida crime of burglary of a dwelling fell

outside the definition of violent felony because it encompassed conduct beyond

“generic burglary” as the Supreme Court had defined it in Taylor v. United States,

495 U.S. 575

 (1990). The postconviction court denied Williams relief and a

certificate of appealability (“COA”). This Court also denied him a COA and

denied his motion for reconsideration on March 23, 2004, noting that the use of the


                                          4
              Case: 11-13306     Date Filed: 04/11/2013    Page: 5 of 51


“1989 burglary conviction . . . was arguably erroneous under Taylor,” but

concluding that any possible error was immaterial because Williams’s other prior

convictions could support the enhancement. The Supreme Court denied certiorari.

Williams v. United States, 

543 U.S. 864

 (2004).

      After the Supreme Court decided Shepard v. United States, 

544 U.S. 13

(2005), which limited the materials a district court could consult to determine

whether a prior conviction was a violent felony under the ACCA, Williams twice

unsuccessfully sought Rule 60(b) relief from the denial of his § 2255 motion. In

both instances, the district court concluded that it lacked subject-matter jurisdiction

to entertain Williams’s claim -- which asserted, through the lens of ineffective

assistance of counsel, that his 

Fla. Stat. § 810.02

 burglary convictions were not

violent felonies in light of Taylor and Shepard -- because Williams was effectively

seeking a second § 2255 motion. Williams then filed a petition for a writ of habeas

corpus pursuant to 

28 U.S.C. § 2241

 in the U.S. District Court for the Eastern

District of North Carolina. That petition, which reiterated his Taylor and Shepard

claims, was also unsuccessful.

      After the Supreme Court decided Begay v. United States, 

553 U.S. 137

(2008), Williams filed still another § 2255 motion. Williams argued that, under

Begay, his burglary offenses did not qualify as violent felonies, and that therefore

his sentence exceeded the ten-year statutory maximum for his crime of conviction.


                                           5
              Case: 11-13306     Date Filed: 04/11/2013    Page: 6 of 51


The district court concluded that it could not entertain this second or successive

motion because Williams had not moved this Court for authorization pursuant to

28 U.S.C. §§ 2255

(h) and 2244(b)(3)(A), which deprived it of subject-matter

jurisdiction. Williams did not appeal this decision.

      In November 2010, Williams again collaterally attacked his sentence, filing

the instant § 2241 petition in the U.S. District Court for the Southern District of

Georgia. Williams contended that, pursuant to the savings clause of § 2255(e), the

district court could hear his § 2241 petition and hence decide the Begay claim that

he had raised in his second § 2255 motion.

      The district court, relying on our en banc decision in United States v.

Gilbert, 

640 F.3d 1293

 (11th Cir. 2011), dismissed Williams’s petition because it

interpreted Gilbert as holding that the savings clause does not authorize any

challenge to a prisoner’s sentence, only challenges based on actual innocence.

Williams timely appealed, and this Court appointed him counsel.

      The government initially conceded both before the district court and on

appeal that the savings clause applied to the kind of claim Williams sought to bring

in his § 2241 petition. Nonetheless, at oral argument we asked the parties to brief

whether the district court had subject-matter jurisdiction to entertain his petition

pursuant to the savings clause. See Wofford v. Scott, 

177 F.3d 1236, 1245

 (11th

Cir. 1999) (“[T]he only sentencing claims that may conceivably be covered by the


                                           6
              Case: 11-13306     Date Filed: 04/11/2013    Page: 7 of 51


savings clause are those based upon a retroactively applicable Supreme Court

decision overturning circuit precedent.”). Williams asserted that the savings clause

issue was nonjurisdictional and thus we should accept the government’s initial

concession and go to the merits of his claim. Moreover, he said, this Court’s

ACCA precedents -- while not specifically addressing the issue of whether Florida

burglary of a dwelling was a violent felony -- did foreclose his sentencing claim

prior to Begay. In response, the government argued that Williams failed to satisfy

Wofford’s requirement that his claim be based upon a retroactively applicable

Supreme Court decision overturning circuit precedent. The government said that

there was no controlling circuit precedent that foreclosed Williams’s claim during

his direct appeal and that, in any case, none of the Supreme Court’s subsequent

ACCA decisions cast doubt on whether 

Fla. Stat. § 810.02

 is a violent felony.

Thus, the savings clause did not permit Williams’s § 2241 petition.

                                          II.

      Whether a prisoner may bring a 

28 U.S.C. § 2241

 petition under the savings

clause of § 2255(e) is a question of law we review de novo. Sawyer v. Holder, 

326 F.3d 1363

, 1365 n.4 (11th Cir. 2003). The applicability of the savings clause is a

threshold jurisdictional issue, and we “cannot reach . . . questions” that “the district

court never had jurisdiction to entertain.” Boone v. Sec’y, Dep’t of Corr., 

377 F.3d 1315, 1316

 (11th Cir. 2004). If the savings clause does permit Williams’s § 2241


                                           7
              Case: 11-13306     Date Filed: 04/11/2013   Page: 8 of 51


petition, the substantive issue -- whether his prior convictions qualify as violent

felonies under the Armed Career Criminal Act -- is also a question of law we

review de novo. United States v. Canty, 

570 F.3d 1251, 1254

 (11th Cir. 2009).

                                          A.

      Williams contends that the savings clause of § 2255(e) permits him to file a

§ 2241 habeas petition to raise the claim that his sentence exceeds the statutory

maximum authorized by 

18 U.S.C. § 924

. He argues, at bottom, that the Supreme

Court’s recent run of ACCA cases, most notably Begay v. United States, 

553 U.S. 137

 (2008), should lead us to conclude that his 1989 and 1990 burglary convictions

are not violent felonies. Begay held that the ACCA’s residual clause should

encompass only those “crimes that are roughly similar, in kind as well as in degree

of risk posed, to the [enumerated crimes] themselves.” 

Id. at 143

. To test whether a

state offense satisfies these conditions, a court must determine whether the crime

involves “purposeful, violent, and aggressive conduct.” 

Id. at 144-45

 (internal

quotation marks omitted). According to Williams, his 1989 and 1990 burglary

convictions posed a lesser degree of risk than the ACCA’s enumerated crimes

because the Florida statute encompassed conduct analogous to mere criminal

trespass. Therefore, Williams avers, he was not properly subject to the ACCA

enhancement that led to a sentence in excess of the otherwise applicable ten-year

statutory maximum.


                                           8
                Case: 11-13306      Date Filed: 04/11/2013    Page: 9 of 51


         But Williams has already challenged the characterization of his burglary

convictions as violent felonies under the ACCA, and hence the application of the

ACCA enhancement to his sentence. He cannot raise this claim again in a second

or successive § 2255 motion. Section 2255’s savings clause dictates the narrow

circumstances in which the district court could have heard and decided Williams’s

claim:

                An application for a writ of habeas corpus in behalf of a
         prisoner who is authorized to apply for relief by motion pursuant to
         this section, shall not be entertained if it appears that the applicant has
         failed to apply for relief, by motion, to the court which sentenced him,
         or that such court has denied him relief, unless it also appears that the
         remedy by motion is inadequate or ineffective to test the legality of
         his detention.

28 U.S.C. § 2255

(e) (emphasis added). Thus, in order for the savings clause to

apply, Williams must demonstrate that his direct appeal and first § 2255 motion

were “inadequate or ineffective” tests of his claim.

         Before we consider that question, however, we must determine whether the

savings clause is a jurisdictional provision. As the Federal Rules of Civil Procedure

state, “If the court determines at any time that it lacks subject-matter jurisdiction,

the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3); accord Gonzalez v.

Thaler, 

132 S. Ct. 641, 648

 (2012) (“When a requirement goes to subject-matter

jurisdiction, courts are obligated to consider sua sponte issues that the parties have

disclaimed or have not presented.”); 

id.

 (“Subject-matter jurisdiction can never be


                                             9
             Case: 11-13306      Date Filed: 04/11/2013    Page: 10 of 51


waived or forfeited.”). This threshold question is particularly important because the

government conceded in the district court, and initially on appeal, that the savings

clause applies to Williams’s claim. If the savings clause is not jurisdictional, then

we may proceed directly to the merits on the basis of this concession; however, we

cannot accept this concession if the savings clause limits the district court’s

subject-matter jurisdiction to entertain a § 2241 petition. See W. Peninsular Title

Co. v. Palm Beach Cnty., 

41 F.3d 1490

, 1492 n.4 (11th Cir. 1995) (“Parties may

not stipulate jurisdiction.”). After thorough review, we hold that the savings clause

does indeed impose a subject-matter jurisdictional limit on § 2241 petitions. Given

the importance of the issue and the relative dearth of authority, we explain this

holding at some length.

      The Supreme Court recently has taken an active role in more precisely

delineating what statutory prerequisites to suit qualify as jurisdictional -- a

boundary not always neatly policed in the past. See Arbaugh v. Y & H Corp., 

546 U.S. 500, 510

 (2006) (“This Court, no less than other courts, has sometimes been

profligate in its use of the term [‘jurisdictional’].”). In Arbaugh, the Court

established that a requirement for bringing suit is jurisdictional “[i]f the Legislature

clearly states that a threshold limitation on a statute’s scope shall count as

jurisdictional,” and, conversely, that “when Congress does not rank a statutory

limitation on coverage as jurisdictional, courts should treat the restriction as


                                           10
              Case: 11-13306      Date Filed: 04/11/2013     Page: 11 of 51


nonjurisdictional in character.” 

Id. at 515-16

. Thus, whether a statutory limitation

is jurisdictional is essentially based on whether there is a clear expression of

congressional intent to make it so.

       In this case, Congress expressed its clear intent to impose a jurisdictional

limitation on a federal court’s ability to grant a habeas petitioner what is effectively

a third bite at the apple after failing to obtain relief on direct appeal or in his first

postconviction proceeding. The savings clause states that a § 2241 habeas petition

“shall not be entertained . . . unless it . . . appears that the remedy by motion is

inadequate or ineffective to test the legality of his detention.” § 2255(e) (emphasis

added). Based on the text alone, which speaks in imperative terms of what class of

cases the district court has the power to hear, not what the petitioner himself must

allege or prove in order to state a claim, we are compelled to conclude that the

savings clause is a limitation on jurisdiction. It commands the district court not to

“entertain[]” a § 2241 petition that raises a claim ordinarily cognizable in the

petitioner’s first § 2255 motion except in the exceptional circumstance where the

petitioner’s first motion was “inadequate” or “ineffective” to test his claim. The

provision does everything but use the term “jurisdiction” itself, and there is no

magic in that word that renders its use necessary for courts to find a statutory

limitation jurisdictional in nature. See Henderson ex rel. Henderson v. Shinseki,

131 S. Ct. 1197, 1203

 (2011) (“Congress, of course, need not use magic words in


                                            11
              Case: 11-13306     Date Filed: 04/11/2013    Page: 12 of 51


order to speak clearly on this point.”); Miller-El v. Cockrell, 

537 U.S. 322, 335-36

(2003) (holding to be jurisdictional 

28 U.S.C. § 2253

(c)(1), which provides

“[u]nless a circuit justice or judge issues a certificate of appealability, an appeal

may not be taken to the court of appeals”). As we have explained before, “[a]

jurisdictional defect is one that strips the court of its power to act and makes its

judgment void.” McCoy v. United States, 

266 F.3d 1245, 1249

 (11th Cir. 2001)

(internal quotation marks and alterations omitted); accord Henderson, 

131 S. Ct. at 1202

 (“[A] rule should not be referred to as jurisdictional unless it governs a

court’s adjudicatory capacity . . . .”). A plain reading of the phrase “shall not

entertain” yields the conclusion that Congress intended to, and unambiguously did

strip the district court of the power to act -- that is, Congress stripped the court of

subject-matter jurisdiction -- in these circumstances unless the savings clause

applies.

      Indeed, when we read the provision in its broader context, the savings

clause’s limitation on § 2241 jurisdiction complements another jurisdictional

limitation designed to promote finality of federal criminal judgments. In general, a

federal prisoner seeking to challenge the legality of his conviction or sentence has

two bites at the apple: one on direct appeal, and one via a § 2255 motion. In the

interests of finality, the law generally bars prisoners from filing second or

successive § 2255 motions, except when “certified as provided in section


                                           12
             Case: 11-13306     Date Filed: 04/11/2013    Page: 13 of 51


2244[(b)(3)(A)] by a panel of the appropriate court of appeals to contain” either

“newly discovered evidence” of actual innocence or “a new rule of constitutional

law, made retroactive to cases on collateral review by the Supreme Court, that was

previously unavailable.” See 

28 U.S.C. § 2255

(h); Gilbert, 

640 F.3d at 1309

. This

bar on second or successive motions is jurisdictional. See United States v. Holt,

417 F.3d 1172, 1175

 (11th Cir. 2005) (“Without authorization, the district court

lacks jurisdiction to consider a second or successive petition.” (citing Farris v.

United States, 

333 F.3d 1211, 1216

 (11th Cir. 2003)). It would make little sense for

that provision to be jurisdictional in nature but for the savings clause to be

nonjurisdictional, since both the savings clause and the certification of second

motions pursuant to §§ 2255(h) and 2244(b)(3)(A) are designed to give prisoners a

limited opportunity to mount a second postconviction challenge that Congress has

otherwise denied them through the statutory bar on second or successive motions.

      A comparison of the savings clause to the provisions at issue in Arbaugh and

Miller-El confirms the jurisdictional nature of the savings clause. In Arbaugh, the

Supreme Court addressed whether Title VII’s definition of the term “employer,”

which required the defendant to have “fifteen or more employees,” see 42 U.S.C.

§ 2000e(b), established a jurisdictional requirement or was merely a part of a

plaintiff’s substantive claim. 

546 U.S. at 503

. Notably, this definition was part of a

section titled “Definitions,” 42 U.S.C. § 2000e, which never referred to a court’s


                                          13
              Case: 11-13306     Date Filed: 04/11/2013     Page: 14 of 51


ability to entertain a claim but merely defined terms used in the rest of the statute.

Jurisdiction over Title VII actions existed under a distinct provision, 42 U.S.C.

§ 2000e-5(f)(3), and under the general federal-question jurisdiction of 

28 U.S.C. § 1331

. See Arbaugh, 

546 U.S. at 505-06

. Given this statutory scheme, the Court

had little difficulty concluding that “the threshold number of employees . . . is an

element of a plaintiff’s claim for relief, not a jurisdictional issue.” 

Id. at 516

. A

clear statement regarding a court’s power to hear a Title VII action was decidedly

lacking in that provision.

      In Miller-El, on the other hand, the Court held that the COA requirement of

28 U.S.C. § 2253

(c)(1) did establish a subject-matter jurisdictional limit. See 

537 U.S. at 335-36

 (“Before an appeal may be entertained, a prisoner who was denied

habeas relief in the district court must first seek and obtain a COA . . . . This is a

jurisdictional prerequisite because the COA statute mandates that ‘[u]nless a circuit

justice or judge issues a certificate of appealability, an appeal may not be taken to

the court of appeals . . . .’” (alterations in original) (quoting § 2253(c)(1)); see also

Gonzalez, 

132 S. Ct. at 649

 (characterizing § 2253(c)(1) as “‘clear’ jurisdictional

language”). The savings clause, unlike the definition of employer at issue in

Arbaugh, is housed in a section of the statute that concerns jurisdiction and is

framed in jurisdictional language. Moreover, just like § 2253(c)(1), § 2255(e)




                                           14
              Case: 11-13306     Date Filed: 04/11/2013     Page: 15 of 51


speaks in imperative terms regarding a district court’s power to entertain a

particular kind of claim.

      Although the courts of appeals have not addressed this issue at length, the

great weight of authority also suggests that the savings clause is jurisdictional in

nature. In a Fourth Circuit case, for example, the government failed to contest the

savings clause’s applicability in the district court, then raised the issue for the first

time on appeal. See Rice v. Rivera, 

617 F.3d 802, 806

 (4th Cir. 2010). The Fourth

Circuit described this change-of-heart as a “distasteful occurrence[]” but explained

that the government’s “about-face [wa]s irrelevant to [its] resolution of” what that

court termed a “jurisdictional issue.” 

Id. at 806-07

; accord 

id. at 807

 (“Every

federal appellate court has a special obligation to satisfy itself not only of its own

jurisdiction, but also that of the lower courts in a cause under review.” (alteration

and internal quotation marks omitted)). Thus, the Fourth Circuit considered the

savings clause issue and ultimately held that the district court lacked jurisdiction

over Rice’s § 2241 petition because he failed to satisfy the conditions needed to

render his § 2255 motion inadequate or ineffective to test the legality of his

detention. See id. at 807-08. Several other courts of appeals have taken this

position, or implied that the savings clause is jurisdictional in nature. See Wooten

v. Cauley, 

677 F.3d 303, 306

 (6th Cir. 2012) (analyzing whether “[t]he use of the

savings clause to establish jurisdiction” renders the resulting § 2241 petition


                                            15
               Case: 11-13306       Date Filed: 04/11/2013       Page: 16 of 51


subject to § 2255’s statute of limitations); Harrison v. Ollison, 

519 F.3d 952, 961

(9th Cir. 2008) (“Because Harrison has not established that his petition is a

legitimate § 2241 petition brought pursuant to the escape hatch of § 2255, we do

not have jurisdiction under § 2241 to hear his appeal.”); Hill v. Morrison, 

349 F.3d 1089, 1091

 (8th Cir. 2003) (the savings clause “provides the court of incarceration

as having subject matter jurisdiction over a collateral attack on a conviction or

sentence”); Cephas v. Nash, 

328 F.3d 98, 105

 (2d Cir. 2003) (“[W]here . . .

petitioner invokes § 2241 jurisdiction to raise claims that clearly could have been

pursued earlier . . . then the savings clause of § 2255 is not triggered and dismissal

of the § 2241 petition for lack of jurisdiction is warranted.”); Garza v. Lappin, 

253 F.3d 918, 921

 (7th Cir. 2001) (“If Garza can show that his petition fits under this

narrow exception [in the savings clause], then . . . the district court had jurisdiction

to consider his habeas petition . . . .”). 1

       In short, in enacting § 2255(e), Congress clearly restricted the subject-matter

jurisdiction of the federal courts.

                                               B.

       The remaining issue boils down to whether Williams has demonstrated that

his claim is the kind of claim covered by the savings clause’s limited grant of

1
 Williams cites as contrary authority a Seventh Circuit case, Brown v. Rios, 

696 F.3d 638

 (7th
Cir. 2012). In Brown, however, the Seventh Circuit simply accepted the government’s
concession that the savings clause applied, see 

696 F.3d at 641

, and never considered whether it
was a jurisdictional limitation.
                                               16
               Case: 11-13306      Date Filed: 04/11/2013      Page: 17 of 51


jurisdiction. On its surface, the provision allows prisoners to pursue claims through

a § 2241 petition if their original § 2255 motion was “inadequate or ineffective to

test the legality of [their] detention,” 

28 U.S.C. § 2255

(e), but the statute says

precious little about what it means for the original motion to have been

“inadequate” or “ineffective.” In two major cases, this Court has substantially

limited the types of claims to which the savings clause applies: first in Wofford,

177 F.3d 1236

, and most recently in our en banc decision in Gilbert, 

640 F.3d 1293

.

        As an initial matter, the district court erred in relying on Gilbert to dismiss

Williams’s petition.2 According to the district court, Gilbert held that “a petitioner

is foreclosed from challenging his sentence, rather than his conviction, using 

28 U.S.C. § 2255

(e)’s savings clause.” However, Gilbert never established so

categorical a limitation on the savings clause. Rather, Gilbert addressed -- and

explicitly limited its holding to -- circumstances where a federal prisoner sought to

attack a potential misapplication of the Sentencing Guidelines that resulted in a

higher sentence, but one that remained within the statutory maximum. See 

640 F.3d at 1295

 (framing the question as “whether a federal prisoner can use a habeas

corpus petition to challenge his sentence” when “the sentence the prisoner is

2
  We can, however, “affirm the judgment of the district court on any ground supported by the
record, regardless of whether that ground was relied upon or even considered by the district
court,” Kernel Records Oy v. Mosley, 

694 F.3d 1294, 1309

 (11th Cir. 2012), and ultimately do
so here.
                                              17
             Case: 11-13306     Date Filed: 04/11/2013     Page: 18 of 51


attacking does not exceed the statutory maximum”). We held that such challenges

to guideline determinations do not fall within the ambit of the savings clause. 

Id. at 1323

. In a footnote, Gilbert specifically limited its holding from applying to “pure

Begay errors, by which we mean errors in the application of the ‘violent felony’

enhancement, as defined in 

18 U.S.C. § 924

(e)(2)(B), resulting in a higher

statutory minimum and maximum sentence under § 924(e).” Id. at 1319 n.20. In

Gilbert, “we ha[d] no occasion to decide” how to treat these pure Begay errors and

held only that “the savings clause does not apply to sentencing errors that do not

push the term of imprisonment beyond the statutory maximum.” Id.; accord id. at

1323 (“Nor do we decide if the savings clause . . . would permit . . . a § 2241

petition claiming that [the prisoner] was sentenced to a term of imprisonment

exceeding the statutory maximum.”). Williams’s claim is that the district court

erroneously applied the ACCA enhancement, which increased his sentence to 293

months, well beyond the otherwise applicable ten-year statutory maximum. Since

Gilbert expressly reserved the issue of whether the savings clause applied to this

species of claim, the district court committed legal error by reading Gilbert as

disposing of Williams’s § 2241 petition.

      In fact, it is not Gilbert, but rather our earlier savings clause decision in

Wofford, that is fatal to Williams’s attempt to pass through the savings clause. In

Wofford, a prisoner sought and was denied § 2255 relief on a variety of claims; he


                                           18
             Case: 11-13306     Date Filed: 04/11/2013    Page: 19 of 51


then sought permission to file a second § 2255 motion advancing several new

challenges to his sentencing. See 

177 F.3d at 1237-38

. After several failed attempts

at obtaining certification to file a second § 2255 motion, Wofford filed a petition

for a writ of habeas corpus pursuant to § 2241, arguing that the savings clause

allowed him to pursue his sentencing arguments because § 2255 foreclosed any

other avenue for raising those claims. Id. at 1238.

      To divine the meaning of the savings clause, the panel in Wofford canvassed

the decisions of our sister circuits, several of which had permitted § 2241 petitions

via the savings clause in the wake of the Supreme Court’s decision in Bailey v.

United States, 

516 U.S. 137

 (1995). See Wofford, 

177 F.3d at 1242-45

. In Bailey,

the Supreme Court had restricted the meaning of a federal criminal statute, 

18 U.S.C. § 924

(c)(1), which meant that some prisoners, who were convicted under

the broader interpretation of that statute, were then imprisoned for conduct the law

no longer rendered criminal. See 

id. at 1242

. By the time Wofford was decided, the

Second, Third, and Seventh Circuits had all held that the savings clause permitted

prisoners to claim actual innocence based on Bailey in a § 2241 petition, although

each court relied on a different rationale. See id. at 1242-44. The panel in Wofford

approved of the Seventh Circuit’s approach in In re Davenport, 

147 F.3d 605

 (7th

Cir. 1998), which held that when “a Supreme Court decision has changed the law

of a circuit retroactively in such a way that a prisoner stands convicted for a


                                          19
             Case: 11-13306      Date Filed: 04/11/2013    Page: 20 of 51


nonexistent offense, and the prisoner had no reasonable opportunity for a judicial

remedy of that fundamental defect before filing the § 2241 proceeding,” then the

savings clause permitted the petition. See Wofford 

177 F.3d at 1244

 (citing In re

Davenport, 

147 F.3d at 611

).

      Wofford approved of the Davenport approach because it addressed and

harmonized two serious concerns that are in some tension with one another. On the

one hand, “the essential function of habeas corpus is to give a prisoner a reasonable

opportunity to obtain a reliable judicial determination of the fundamental legality

of his conviction and sentence,” and it may be necessary to apply the savings

clause to some claims inadequately addressed in a first § 2255 motion in order to

“satisfy the Constitution[’s Suspension Clause, U.S. Const. art. I, § 9, cl. 2.]” Id.

(internal quotation marks omitted). On the other hand, letting the savings clause

apply too broadly would eviscerate the statutory bar on second or successive

motions, which was intended to limit most prisoners to one clean shot at

postconviction relief. Id. (if “the § 2241 remedy is available whenever the AEDPA

restrictions on second or successive motions bar a § 2255 motion,” then that

“would nullify the [bar’s] limitations” (internal quotation marks omitted)). After

all, the savings clause cannot simply mean that every § 2255 motion that appears to

have been incorrectly decided based on subsequent Supreme Court precedent may

be revisited through a § 2241 habeas petition; if it did, then the bar on second or


                                           20
                Case: 11-13306        Date Filed: 04/11/2013        Page: 21 of 51


successive motions would effectively be written out of the statute, and the savings

clause would swallow up the specific allowance for a second motion when the

basis of the challenge is “a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that was previously unavailable.”

See 

28 U.S.C. § 2255

(h)(2). 3 Yet by the same token, the circumstances delineated

in § 2255(h)(1) and (2) cannot be the only instances in which the § 2255 remedy is

inadequate; if that were true, then it would be the savings clause that was rendered

meaningless. If possible, we try to avoid interpreting a statute in such a way that

any part of it becomes mere surplusage. See United States v. Canals-Jimenez, 

943 F.2d 1284, 1287

 (11th Cir. 1991).

3
  As we see it, the dissent brushes aside this problem, claiming that “[t]he correct question to ask
is whether Mr. Williams was erroneously sentenced as an armed career criminal in light of
Begay,” and that “[t]he existence or nonexistence of circuit precedent which conflicts with
Begay” is meaningless. Dissenting Op. at 44. According to the dissent, when an intervening
Supreme Court precedent reveals that a prisoner’s sentence exceeds the statutory maximum, the
prisoner’s claim assumes a uniquely powerful constitutional dimension that means we must
entertain it notwithstanding the statutory bar on second or successive motions. See Dissenting
Op. at 38, 46-47.
        The dissent’s position, however, ignores the language and structure of 

28 U.S.C. § 2255

.
The statute covers a whole host of claims, expressly including claims “that the sentence was in
excess of the maximum authorized by law,” 

id.

 § 2255(a), but nonetheless bars a second or
successive motion advancing those claims unless they are based upon “a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable,” id. § 2255(h)(2). There is not the slightest indication in the statutory text
that the type of error Williams alleges -- a sentence in excess of the statutory maximum -- is or
should be treated as warranting an exception to the bar on second or successive motions.
Nonetheless, the dissent maintains that, at least for this kind of claim, all Williams needed was
Begay itself -- a decision based on statutory interpretation of the ACCA rather than constitutional
law, and one which the Court itself did not make retroactively applicable. In taking this position,
the dissent effectively seeks to rewrite § 2255 to put one type of claim enumerated in § 2255(a)
on a different footing from all the other claims the statute covers. We are obliged, however, to
obey the language as Congress wrote it, and Congress applied the same bar on second or
successive motions to all the claims enumerated in § 2255(a).
                                                 21
             Case: 11-13306     Date Filed: 04/11/2013    Page: 22 of 51


      Drawing from Davenport, Wofford described two different kinds of

challenges to which the savings clause applies that are not covered by § 2255(h).

First, the panel opined in dicta that “[t]he savings clause of § 2255 applies to a

claim when: 1) that claim is based upon a retroactively applicable Supreme Court

decision; 2) the holding of that Supreme Court decision establishes the petitioner

was convicted for a nonexistent offense; and, 3) circuit law squarely foreclosed

such a claim at the time it otherwise should have been raised in the petitioner’s

trial, appeal, or first § 2255 motion.” Wofford, 

177 F.3d at 1244

. This category

covers actual innocence challenges akin to the post-Bailey § 2241 petitions

permitted by several other courts of appeals; when a Supreme Court decision

subsequent to conviction means that a petitioner’s offense conduct is no longer

criminal, the savings clause gives him an avenue to seek relief. Also in dicta, the

panel in Wofford noted a second circumstance to which the savings clause might

apply: when “a ‘fundamental defect’ in sentencing” occurred and “the petitioner

had not had an opportunity to obtain judicial correction of that defect earlier.” Id.

(quoting In re Davenport, 

147 F.3d at 611

). This interpretation of the savings

clause harmonizes that provision with the bar on second or successive motions

while also avoiding constitutional questions under the Suspension Clause.

      The panel in Wofford did not define what qualified as a fundamental defect.

Rather, the panel said: “It is enough to hold, as we do, that the only sentencing


                                          22
               Case: 11-13306        Date Filed: 04/11/2013       Page: 23 of 51


claims that may conceivably be covered by the savings clause are those based upon

a retroactively applicable Supreme Court decision overturning circuit precedent.”

Id. at 1245. Because Wofford’s sentencing claims did not “rest upon a circuit law-

busting, retroactively applicable Supreme Court decision,” and he had “had a

procedural opportunity to raise each of his claims . . . at trial or on appeal,” the

panel in Wofford concluded that the savings clause could not apply to his claims.

Id.

       Wofford’s holding establishes two necessary conditions -- although it does

not go so far as holding them to be sufficient -- for a sentencing claim to pass

muster under the savings clause. First, the claim must be based upon a retroactively

applicable Supreme Court decision. The second, and equally essential, condition is

that the Supreme Court decision must have overturned a circuit precedent that

squarely resolved the claim so that the petitioner had no genuine opportunity to

raise it at trial, on appeal, or in his first § 2255 motion. Wofford resolves the issue

in this appeal because Williams cannot show that this Circuit’s law foreclosed him

from raising an objection to the treatment of his two Florida burglary convictions

as violent felonies under the ACCA.4


4
  The dissent disagrees with our reading of Wofford. The dissent says that Williams’s claim is
not a sentencing claim, see Dissenting Op. at 39 n.2, and thus cannot fall within Wofford’s
holding that “the only sentencing claims that may conceivably be covered by the savings clause
are those based upon a retroactively applicable Supreme Court decision overturning circuit
precedent.” 

177 F.3d at 1245

. The dissent also suggests that Wofford does not apply to these
circumstances, and that we have mistaken its dicta for its holding. According to the dissent, the
                                                23
               Case: 11-13306        Date Filed: 04/11/2013       Page: 24 of 51


       No Eleventh Circuit precedent squarely held that burglary of a dwelling, as

defined in 

Fla. Stat. § 810.02

, was a violent felony for ACCA purposes during



requirement of circuit-busting Supreme Court precedent “does not apply to someone serving a
sentence beyond what the statute allows.” Dissenting Op. at 39-40; accord 

id. at 43-44

.
          In the first place, we are hard-pressed to imagine a more quintessential sentencing claim
than the one Williams has presented: that his 293-month sentence was the product of an
erroneous application of the Armed Career Criminal Act, which is -- and which this Court has
always treated as -- a “sentencing enhancement” statute. See, e.g., United States v. Robinson,

583 F.3d 1292, 1293

 (11th Cir. 2009). The dissent even quotes language from our en banc
opinion in Gilbert that makes this point abundantly clear. As we explained in Gilbert, if “pure
Begay errors” fell within the savings clause, it would be because they were “sentencing claims . .
. where there was a fundamental defect in sentencing.” 

640 F.3d at 1319

 n.20 (emphasis added).
Indeed, it is difficult to understand why Gilbert would bother to confine its holding to
“sentencing errors that do not push the term of imprisonment beyond the statutory maximum,”

id.,

 if all sentencing errors that pushed the term of imprisonment beyond the statutory maximum
were not sentencing claims at all.
          As for the claim that Wofford is inapplicable or that we were applying mere dicta from
that case, the principle we apply comes from this part of the opinion: “It is enough to hold, as we
do, that the only sentencing claims that may conceivably be covered by the savings clause are
those based upon a retroactively applicable Supreme Court decision overturning circuit
precedent.” Wofford, 

177 F.3d at 1245

 (emphasis added). This passage plainly is holding. The
panel in Wofford described it as holding, and it was the very basis upon which the panel
disposed of the petitioner’s claim. Wofford could demonstrate neither an intervening Supreme
Court precedent nor an overruled circuit precedent, see 

id.,

 and therefore he failed to satisfy the
two necessary conditions for a sentencing claim to be covered by the savings clause. Nor did the
panel in Wofford confine its holding to the circumstance where a petitioner challenges a sentence
below the statutory maximum. Indeed, Davenport, the case upon which the panel in Wofford
relied, rejected a petitioner’s attempt to utilize the savings clause to challenge an ACCA
enhancement that raised his sentence above the otherwise applicable statutory maximum. See In
re Davenport, 

147 F.3d at 607

.
          The dissent’s interpretation of Wofford stems from its misreading of this Court’s
subsequent descriptions of Wofford’s holding. As a shorthand, panels of this Court or the Court
sitting en banc have characterized Wofford as holding “simply that the savings clause does not
cover sentence claims that could have been raised in earlier proceedings.” Gilbert, 

640 F.3d at 1319

; see also Turner v. Warden Coleman FCI (Medium), No. 10-12094, --- F.3d ----, 

2013 WL 646089, at *3-4

 (11th Cir. Feb. 22, 2013). What this shorthand means is that the petitioner must
point to then-binding circuit precedent, subsequently overruled by the Supreme Court, that
barred his claim during his earlier proceedings. Otherwise, there was nothing preventing him
from raising his claim on direct appeal or in his first § 2255 motion. See Wofford, 

177 F.3d at 1245

 (“[H]is claims are sentencing claims, none of which rest upon a circuit law-busting,
retroactively applicable Supreme Court decision. Wofford had a procedural opportunity to raise
each of his claims and have it decided either at trial or on appeal.”).
                                                24
             Case: 11-13306     Date Filed: 04/11/2013    Page: 25 of 51


Williams’s direct and collateral attacks. In United States v. Hill, 

863 F.2d 1575, 1581-82

 (11th Cir. 1989), a panel of this Court had held that § 810.02 was a

“burglary” under the ACCA’s enumerated felonies clause and thus was

categorically a violent felony. Taylor v. United States, 

495 U.S. 575

 (1990),

however, abrogated Hill. Taylor held that, for a state law offense to qualify as a

burglary under the enumerated felonies clause, the offense had to require entry into

an actual building or structure; thus, the Court held that a Missouri burglary statute,

which criminalized entry of locations other than a structure, was not categorically a

burglary for ACCA purposes. See 

id. at 599

. Since 

Fla. Stat. § 810.02

 defines

dwelling to include both the structure and its surrounding curtilage, Taylor

rendered it impossible to hold that § 810.02 was categorically a violent felony

under the ACCA’s enumerated felonies clause. After Taylor abrogated Hill,

therefore, it was an open question in this Circuit whether § 810.02 might

categorically constitute a violent felony not under the ACCA’s enumerated

felonies clause but rather under the so-called residual clause, which covers crimes

that “otherwise involve[] conduct that presents a serious potential risk of physical

injury to another,” 

18 U.S.C. § 924

(e)(2)(B)(ii). See James v. United States, 

550 U.S. 192, 201

 (2007). Indeed, Williams does not suggest that Hill controlled the

outcome of his case.




                                          25
               Case: 11-13306        Date Filed: 04/11/2013        Page: 26 of 51


       Williams was convicted in 1998, and his direct appeal and first 

28 U.S.C. § 2255

 motion were decided between 1998 and March 23, 2004, when a panel of

this Court denied his motion for reconsideration of this Court’s denial of a COA.

Only after both Williams’s direct appeal and his collateral attack did this Court

decide United States v. James, 

430 F.3d 1150

 (11th Cir. 2005), aff’d, 

550 U.S. 192

,

and United States v. Matthews, 

466 F.3d 1271, 1275-76

 (11th Cir. 2006), which

held that attempted burglary and burglary of a dwelling under Florida law are

violent felonies pursuant to the ACCA’s residual clause. 5 In short, no Circuit

precedent on the books during Williams’s collateral attack foreclosed his argument

and rendered his § 2255 motion an ineffective test of his claims.

       Williams offers two alternate readings of Wofford. First, he argues that there

is another route through the savings clause: that he is “entitled to a remedy under

the familiar miscarriage of justice standard.” As Williams puts it, quoting Davis v.

United States, 

417 U.S. 333, 346-47

 (1974), “[t]here is ‘no room for doubt’ that,

when a subsequent interpretation of a statute demonstrates that an individual is

being incarcerated for ‘an act the law does not make criminal,’ there has been ‘a

complete miscarriage of justice’ for which there should be habeas relief.” This


5
  Arguably, these results naturally followed from an earlier decision, but that decision also
postdated Williams’s collateral attack and thus cannot help his case. On May 12, 2004 -- notably,
after we denied his final attempt to obtain a COA -- a panel of this Court held, in United States v.
Gunn, 

369 F.3d 1229, 1238

 (11th Cir. 2004), that attempted burglary of a dwelling was a crime
of violence for purposes of the Sentencing Guidelines under a residual clause effectively
identical to that in the ACCA.
                                                26
             Case: 11-13306     Date Filed: 04/11/2013    Page: 27 of 51


argument misses twice. First, to the extent that Williams asserts he was convicted

of an act that the law does not make criminal -- i.e., a “nonexistent offense,” the

phrase used in Wofford -- he misinterprets that phrase. Wofford used the phrase

“nonexistent offense” in reference to the savings clause cases decided in the wake

of Bailey. Bailey, which narrowed the meaning of 

18 U.S.C. § 924

(c)(1), meant

that some prisoners’ convictions were based on conduct no longer covered by the

statute as interpreted by the Supreme Court -- that is, they were actually innocent.

See Wofford, 

177 F.3d at 1242

. Indeed, in Gilbert, we characterized this line of

cases as holding that the savings clause permitted prisoners “to bring their Bailey

actual innocence claims in a § 2241 petition.” See 

640 F.3d at 1319

. But Williams

is not asserting that he is “actually innocent” of either his possession of a firearm

offense or his underlying burglary offenses, nor could he. Rather, he is asserting

only legal innocence: that his burglary convictions should not have been

considered violent felonies under the ACCA. Cf. McKay v. United States, 

657 F.3d 1190, 1197-1200

 (11th Cir. 2011) (claim that a prior conviction did not

qualify as a “crime of violence,” for purposes of the career offender enhancement

under U.S.S.G. § 4B1.1, was a claim “of legal, rather than factual, innocence”);

United States v. Pettiford, 

612 F.3d 270, 284

 (4th Cir. 2010) (no actual innocence

excuse for procedural default where the claim was that the prisoner’s assault

conviction was not a violent felony under the ACCA; the claim was a “legal


                                          27
             Case: 11-13306     Date Filed: 04/11/2013    Page: 28 of 51


argument that this conviction should not have been classified as a ‘violent felony’”

and thus was “not cognizable as a claim of actual innocence”).

      Moreover, Davis itself decided a different issue: whether a claim

“unsuccessfully litigated . . . on direct review” could be “assert[ed] on collateral

attack.” 

417 U.S. at 342

. The Supreme Court held that, where a precedent later

establishes that the prisoner was convicted and punished “for an act that the law

does not make criminal,” he may seek collateral relief in his first § 2255 motion

despite losing the issue on direct appeal. See id. at 346-47. Davis did not address

whether the savings clause permits what is effectively a second or successive

motion under the miscarriage of justice standard.

      If the miscarriage of justice standard is inapplicable (and we think it is

plainly inapplicable), Williams concedes that his claim must meet Wofford’s two

conditions for challenging a sentence. He maintains, however, that his first § 2255

motion was ineffective because Begay altered the test we once applied to

determine whether a state conviction qualified as a violent felony under the

ACCA’s residual clause. In other words, according to Williams, Begay was the

“circuit law-busting, retroactively applicable Supreme Court decision” that

Wofford demands. See 

177 F.3d at 1245

. In this vein, he points to several of our

decisions that Begay abrogated. See, e.g., United States v. Hall, 

77 F.3d 398

, 401-

02 (11th Cir. 1996). As he puts it, “[t]he weight of this wall of unfavorable, broad


                                          28
             Case: 11-13306     Date Filed: 04/11/2013   Page: 29 of 51


decisions” deprived him of an opportunity to obtain a reliable judicial

determination of his claim.

      The government reads Wofford differently, however, and urges us to

conclude that “Williams cannot meet his burden, under Wofford, of demonstrating

that his challenge to the burglary convictions that supported his armed career

criminal designation is based on a retroactively applicable Supreme Court decision

that has overturned circuit precedent,” for two separate and independent reasons.

The government points out that “[t]here was no controlling circuit law that would

have foreclosed [Williams’s] claims at time of his direct appeal in 1999.”

Moreover, there has been no Supreme Court decision that would alter this Court’s

treatment of 

Fla. Stat. § 810.02

 as a violent felony. To the contrary, “the Supreme

Court’s decision in James . . . has essentially resolved the issue Williams has raised

and it has resolved this issue in favor of the [government.]” Thus, the government

maintains that the savings clause does not apply to Williams’s claim. We agree

with the first of the government’s two points.

      Williams’s argument misapprehends the scope of the Supreme Court’s

relevant ACCA decisions and what we mean when we speak of “circuit law-

busting” Supreme Court precedent. Invoking Begay alone would not be enough to

establish jurisdiction over Williams’s petition under the savings clause. Wofford

does not require merely that the relevant Supreme Court precedent may have


                                         29
             Case: 11-13306     Date Filed: 04/11/2013   Page: 30 of 51


altered the applicable legal test. When we evaluate whether Begay was “circuit-law

busting” in the savings clause context, we must find that Begay “overturned circuit

precedent” specifically addressing the claim Williams now asserts -- namely, that

Fla. Stat. § 810.02

 is not a violent felony for ACCA purposes. See Wofford, 

177 F.3d at 1245

. The reason the panel in Wofford imposed this requirement is that, if

an issue had not been decided against a petitioner’s position by prior precedent at

the time of his first § 2255 motion, then that motion would have been an adequate

procedure for testing his claim. The courts would have heard the claim and decided

its merits, unlike in the case where adverse precedent already existed and thus

“stare decisis would make us unwilling . . . to listen to him.” In re Davenport, 

147 F.3d at 611

. In this case, there was no adverse precedent at the time of Williams’s

§ 2255 motion that would have made us unwilling to listen to his claim.

      Begay is not circuit law-busting in Wofford’s sense of the term. In Begay,

the Supreme Court considered whether a New Mexico DUI offense was a violent

felony for ACCA purposes. 

553 U.S. at 139

. Begay established that the proper test

for determining which state law offenses qualified as violent felonies under the

ACCA’s residual clause was whether the crime involved “purposeful, violent, and

aggressive conduct.” 

Id. at 144-45

 (internal quotation marks omitted). Applying

this novel test to New Mexico’s DUI offense, the Supreme Court concluded that it

was not a violent felony. See 

id. at 148

.


                                            30
               Case: 11-13306        Date Filed: 04/11/2013        Page: 31 of 51


       Begay changed the analytical framework for determining whether a given

state offense is a violent felony at a high level of abstraction by crafting its

“purposeful, violent, and aggressive” test. It did not abrogate all of this Court’s

pre-Begay violent felony jurisprudence. Thus, it is not at all clear that Begay would

have abrogated any circuit precedent holding § 810.02 was a violent felony. But in

any case, we need not dwell on that question because, at the time of Williams’s

first § 2255 motion, there was no circuit precedent for Begay to bust. 6 None of the

cases Williams cites are apposite because they concern criminal statutes other than

Fla. Stat. § 810.02

. United States v. Wilkerson, for instance, held that conspiracy to

commit robbery under Florida law was a violent felony. See 

286 F.3d 1324

, 1325-

26 (11th Cir. 2002); see also United States v. Gay, 

251 F.3d 950

, 954 (11th Cir.

2001) (felony escape); United States v. Patton, 

114 F.3d 174, 176-77

 (11th Cir.

1997) (conveyance of a weapon in federal prison); United States v. Hall, 

77 F.3d 398, 401-02

 (11th Cir. 1996) (carrying a concealed firearm). The most that


6
  We note in passing that the Supreme Court recently has substantially circumscribed the reach
of Begay so that its similar-in-kind requirement no longer applies to intentional crimes like 

Fla. Stat. § 810.02

. In Sykes v. United States, the Court clarified that the central inquiry under the
ACCA’s residual clause, at least for intentional crimes, is whether the offense “presents a serious
potential risk of physical injury to another” comparable to the risk posed by the ACCA’s
enumerated crimes. 

131 S. Ct. 2267

, 2273 (2011); accord id. at 2275-76 (distinguishing Begay’s
analysis as applying to strict liability, negligence, and recklessness crimes, and noting that “[i]n
many cases the purposeful, violent, and aggressive inquiry will be redundant with the inquiry
into risk”). We have recognized that Sykes’s comparative risk inquiry, not Begay’s “purposeful,
violent, and aggressive” formulation, applies when the offense in question involves “knowing or
intentional conduct.” United States v. Chitwood, 

676 F.3d 971, 979

 (11th Cir. 2012). In any
event, Williams cannot claim either Begay or Sykes is circuit law-busting in light of our
determination that there was no circuit precedent for the Supreme Court’s decisions to bust.
                                                31
             Case: 11-13306     Date Filed: 04/11/2013    Page: 32 of 51


Williams can demonstrate with this “wall of broad, unfavorable decisions” is that,

at the time of his first § 2255 motion, the courts addressing his claim arguably

reached an incorrect outcome. But, as we have explained, simply because a

procedurally adequate test may get the answer wrong -- and it is by no means clear

that the answer was wrong in this case -- cannot mean that a petitioner is entitled to

utilize the savings clause to have his claim reevaluated still again in light of novel

Supreme Court precedent. See Gilbert, 

640 F.3d at 1307-09

; Wofford, 

177 F.3d at 1244

. Williams has to show that the test was not procedurally adequate because

erroneous circuit precedent foreclosed his argument.

      This he cannot do. Williams himself raised an objection to the use of his

burglary convictions as ACCA predicates in his first § 2255 motion, but this

argument was rejected by the district court. Subsequently, the district court denied

him a COA on this claim, as did this Court. Williams then moved for

reconsideration of that denial, but this Court denied that motion on March 23,

2004. The order denying reconsideration noted that “the use of appellant’s 1989

burglary conviction as a predicate for the armed career criminal enhancement was

arguably erroneous under Taylor,” but characterized the claim as “ultimately

immaterial” because Williams had three other convictions, including the 1990

burglary, that qualified him for the ACCA enhancement. Thus, Williams’s first

§ 2255 motion was not “inadequate or ineffective to test the legality of his [ACCA


                                          32
               Case: 11-13306        Date Filed: 04/11/2013       Page: 33 of 51


enhancement],” see 

28 U.S.C. § 2255

(e) -- in fact, his first motion did test that very

issue. Whether that test yielded the right answer is a different matter, and one that

is not dispositive of the question of whether Williams now may pursue relief

through the savings clause. See Gilbert, 

640 F.3d at 1308

 (“the savings clause

would eviscerate the second or successive motions bar,” and no subsequent motion

or petition “could be dismissed without a determination of the merits of the claims

[it] raise[s]” if the savings clause allowed all wrongfully decided claims in a first

§ 2255 motion to be revived in a § 2241 petition); Wofford 

177 F.3d at 1244

.

Rather, what is dispositive is that his claim was not foreclosed at the time by

binding Eleventh Circuit precedent that Begay overruled or abrogated.7


7
  The dissent mainly says that Wofford is inapplicable. However, the dissent also suggests that
Williams has satisfied Wofford’s conditions because he was foreclosed from raising his claim in
his direct appeal and first § 2255 motion. Dissenting Op. at 47. However, the dissent ignores
Wofford’s holding, which limits the savings clause’s applicability to only those claims “based
upon a retroactively applicable Supreme Court decision overturning circuit precedent.” 

177 F.3d at 1245

. Williams has identified the Supreme Court case, Begay, but he has not identified any
circuit precedent, overruled by Begay, that held that 

Fla. Stat. § 810.02

 was a violent felony
under the ACCA’s residual clause. Nor does the dissent cite to such a case; nor, finally, can we
find one.
         As we see it, the dissent’s mistake is to conflate Williams’s lack of success on the merits
of his first § 2255 motion with the idea that Williams was foreclosed from even raising the claim.
Plainly, his claim was not foreclosed. But if we follow the dissent’s reasoning to its ultimate
conclusion, every § 2255 motion that a panel of this Court comes to believe, years later, is
wrongly decided could be revived under § 2241 by virtue of the savings clause. This view is
unsustainable because it is wholly inconsistent with the bar on second or successive motions, see

28 U.S.C. § 2255

(h); indeed, it would eviscerate the bar. Wofford’s holding makes sense
precisely because it acknowledges the force of that bar while also preserving a meaningful role
for the savings clause. See 

177 F.3d at 1244

. At all events, we are bound by this Court’s
precedent.
         Finally, we note that the district court denied Williams’s claim not by relying on circuit
precedent that held that his 

Fla. Stat. § 810.02

 offense was categorically a violent felony under
the ACCA’s residual clause. Rather, the court found, based on the PSR, that Williams’s
                                                33
               Case: 11-13306       Date Filed: 04/11/2013       Page: 34 of 51


       In addressing a virtually identical fact pattern to the one presented in this

case, the Seventh Circuit held that the savings clause did not permit a prisoner to

file a § 2241 petition to challenge his ACCA predicate felonies when no circuit

precedent had prevented him from doing so during his direct appeal or first § 2255

motion. Hill v. Werlinger, 

695 F.3d 644

 (7th Cir. 2012). In that case, Hill was

convicted in 1999 of possession of a firearm by a convicted felon and was

sentenced under the ACCA. 

Id. at 645-46

. The district court found three predicate

felonies, one for attempted murder and two for aggravated battery. 

Id. at 646

. Hill

later filed a § 2255 motion challenging his indictment as defective and arguing that

his trial counsel was ineffective; that motion was denied. See id. Much later, Hill

filed a § 2241 petition challenging the characterization of one of his aggravated

battery convictions as a violent felony in light of the Supreme Court’s holding in

Johnson v. United States, 

559 U.S. 133

 (2010). See Hill, 

695 F.3d at 646-49

. Like

Williams, Hill’s § 2241 petition argued that he had been sentenced above the

statutory maximum because one of his prior convictions no longer qualified as a

violent felony under a subsequent Supreme Court precedent.

       The Seventh Circuit rejected Hill’s attempt to utilize the savings clause

because, in its view, Hill could not “show that a § 2255 remedy [wa]s inadequate


burglaries were “‘generic’ burglaries . . . which involved an unlawful entry into a building or
other structure” and therefore were violent felonies under the ACCA’s enumerated felonies
clause. This holding had nothing to do with the ACCA’s residual clause, which was the subject
of Begay, but rather was a direct application of the Supreme Court’s holding in Taylor.
                                               34
             Case: 11-13306     Date Filed: 04/11/2013    Page: 35 of 51


or ineffective” since he “failed to show that his claim could not have been

presented in his direct appeal or § 2255 motion.” Id. at 648. “[T]he fact that a

position is novel does not allow a prisoner to bypass section 2255. Only if the

position is foreclosed (as distinct from not being supported by -- from being, in

other words, novel) by precedent is a § 2255 remedy inadequate.” Id. (internal

quotation marks and alteration omitted). In such circumstances, where “Hill ha[d]

not argued that binding precedent foreclosed his claim” but only that “before

Johnson, the law was unclear regarding what amount of force was necessary to

constitute a ‘violent felony’ under the ACCA,” the “lack of clarity in the law

before Johnson did not prevent Hill from bringing his claim either in a direct

appeal or in his § 2255 motion.” Id. at 649. The Seventh Circuit held that the

savings clause did not apply in such circumstances, id., and the logic of Hill

applies with equal force to Williams’s case. As Williams himself concedes, “this

Court had never specifically applied its pre-Begay test to Florida’s 1989 ‘burglary

of a dwelling’ law,” and this concession is fatal to his § 2241 petition.

      In short, Williams had an adequate and reasonable opportunity to test the

legality of his detention both on direct appeal and in his first § 2255 motion, and he

took that opportunity. While his claim that his Florida burglary convictions could

not qualify as ACCA violent felonies was novel at the time of his first § 2255

petition, it was not foreclosed by our precedent. Thus, we conclude that he cannot


                                          35
             Case: 11-13306     Date Filed: 04/11/2013   Page: 36 of 51


now raise that claim once again in a § 2241 petition. The district court lacked

subject-matter jurisdiction to entertain the matter. Accordingly, we affirm the

dismissal of the petition.

      AFFIRMED.




                                         36
               Case: 11-13306         Date Filed: 04/11/2013       Page: 37 of 51


MARTIN, Circuit Judge, dissenting:

       Because I believe the federal courts are not only authorized, but obligated to

address the merits of a claim like that asserted by Albert Williams here, I

respectfully dissent from the majority opinion.

       The majority is correct that Mr. Williams has made “[s]everal failed

collateral attacks” on his Armed Career Criminal Act (ACCA) sentence. 1 Majority

Op. at 4. Despite the failure of his repeated attacks, Mr. Williams perseveres in

asserting that the prior convictions relied upon in sentencing him resulted in a

sentence beyond that allowed by law. Aside from the District Court’s review of

his initial § 2255 motion, every court approached by Mr. Williams has declined to

accept his case for consideration.

       For Mr. Williams especially, it is important that his claim now be considered

on the merits. That is because if he is right, he is serving a term of imprisonment

that exceeds the maximum term authorized by Congress. The crime for which he

was convicted carries a maximum sentence of 10 years imprisonment. 

18 U.S.C. §§ 922

(g)(1), 924(a)(2) (2006). Only if a defendant has already been convicted of

three violent felonies or serious drug offenses does the ACCA provide for a

mandatory minimum sentence of 15 years. 

Id.

 § 924(e)(1). Mr. Williams was

sentenced to 293 months of incarceration (more than 24 years) and says that his

1
 I have attached a chart delineating each of Mr. Williams’s attempts to attack his sentence, as
well as the treatment he got from both the trial court in the district where he filed and our Court.
                                                 37
             Case: 11-13306      Date Filed: 04/11/2013    Page: 38 of 51


sentence should have been capped at 10 years (120 months), because he did not

have three prior convictions for a violent felony or a serious drug offense as

required for the enhanced sentence.

      While the Constitution permits sentencing courts “wide discretion in

determining what sentence to impose,” United States v. Tucker, 

404 U.S. 443, 446

,

92 S. Ct. 589, 591

 (1972), it is clear that “the sentencing process, as well as the

trial itself, must satisfy the requirements of the Due Process Clause,” Gardner v.

Florida, 

430 U.S. 349, 358

, 

97 S. Ct. 1197, 1204

 (1977) (plurality opinion). If Mr.

Williams was wrongly convicted of being an armed career criminal because of an

error of law, his sentence is unconstitutional. It certainly must be true that if a

defendant is sentenced to more than the maximum term authorized by law, he has

been deprived of due process. The Supreme Court has held that a federal

defendant has a “constitutional right to be deprived of liberty as punishment for

criminal conduct only to the extent authorized by Congress.” Whalen v. United

States, 

445 U.S. 684, 690

, 

100 S. Ct. 1432, 1437

 (1980).

      The majority says that we do not have jurisdiction to consider Mr.

Williams’s claim because he has already filed more than the one habeas action he

is permitted by law. In doing so, the majority recognizes that the so-called

“savings clause,” 

28 U.S.C. § 2255

(e) (2006), allows for a second or successive

habeas claim where a prisoner has already asked for habeas, if the remedy he


                                           38
               Case: 11-13306       Date Filed: 04/11/2013       Page: 39 of 51


received “is inadequate or ineffective to test the legality of his detention.” 

Id.

However, the majority says that Mr. Williams is not now entitled to the relief

offered by § 2255’s saving clause because he “cannot show that this Circuit’s law

foreclosed him from raising an objection to the treatment of his two Florida

burglary convictions as violent felonies under the ACCA.” Majority Op. at 23–24.

I cannot agree that this is a sufficient reason to conclude that the savings clause

does not apply to Mr. Williams’s case.

       The majority is quite right when it concludes that Gilbert expressly declined

to decide the issue presented by Mr. Williams’s case—whether “the savings clause

in § 2255(e) would permit a prisoner to bring a § 2241 petition claiming that he

was sentenced to a term of imprisonment exceeding the statutory maximum.”

Gilbert v. United States, 

640 F.3d 1293, 1323

 (11th Cir. 2011) (en banc).

However, the majority misreads our precedent when it says that Mr. Williams, or

any other petitioner sentenced to more time than the statute permits, must satisfy

Wofford’s three-part test before he is entitled to the protection of the savings

clause of § 2255.2 Majority Op. at 19–23. Setting aside for the moment the

constitutional concerns, a straightforward reading of Wofford and Gilbert

2
  The majority refers to Wofford’s three-factor test as dicta, see Majority Op. at 22–23, but
nonetheless insists that Wofford’s test survives in the form of “two necessary conditions.” I can
in no way distinguish the majority’s “two necessary conditions” from Wofford’s three-factor
test. This Court has been clear that what Wofford actually held was “the savings clause does not
cover sentence claims that could have been raised in earlier proceedings.” Gilbert, 

640 F.3d at 1319

. As I see it, Mr. Williams’s case does not present a “sentence claim” but rather a claim that
his continued detention violates the statute under which it was imposed.
                                               39
              Case: 11-13306     Date Filed: 04/11/2013    Page: 40 of 51


demonstrates that Wofford’s threshold test is dicta that does not apply to someone

serving a sentence beyond what the statute allows.

      In contrast to Mr. Williams, Mr. Wofford did not claim that he was

sentenced above the statutory maximum. In fact he was not. Mr. Wofford was

indicted for “conspiracy to possess with intent to distribute cocaine, possession

with intent to distribute cocaine, possession of a firearm in relation to a drug

trafficking crime, and being a felon in possession of a firearm.” Wofford, 

177 F.3d at 1237

. He “pleaded guilty to the conspiracy and felon in possession of a firearm

counts . . . . [and] was subsequently sentenced to a 300-month term of

incarceration on the conspiracy count and a concurrent 60-month term of

incarceration on the felon in possession of a firearm count.” 

Id.

 Obviously, a 60-

month concurrent term of incarceration does not exceed the 10 year statutory

maximum for being a felon in possession of a firearm. See 

18 U.S.C. §§ 922

(g)(1), 924(a)(2). Since this court’s Wofford opinion did not address a

claim that a petitioner’s sentence was above the statutory maximum, anything it

said about this type of claim is dicta. It is well established that a decision of this

Court cannot extend further than the facts and circumstances of the case in which it

arises. See, e.g., Watts v. BellSouth Telecomms, Inc., 

316 F.3d 1203, 1207

 (11th

Cir. 2003) (“Whatever their opinions say, judicial decisions cannot make law

beyond the facts of the cases in which those decisions are announced.”); United


                                           40
             Case: 11-13306      Date Filed: 04/11/2013    Page: 41 of 51


States v. Aguillard, 

217 F.3d 1319, 1321

 (11th Cir. 2000); United States v.

Eggersdorf, 

126 F.3d 1318

, 1322 n.4 (11th Cir. 1997). Wofford’s dicta therefore

cannot constrain our analysis of a case in which a prisoner sits in prison beyond the

time the statute allows. Gilbert itself confirms this.

      In Gilbert, this Court held that “the savings clause does not authorize a

federal prisoner to bring in a § 2241 petition a claim . . . that the sentencing

guidelines were misapplied in a way that resulted in a longer sentence not

exceeding the statutory maximum.” 

640 F.3d at 1323

. Neither party to Mr.

Williams’s appeal disputes that Gilbert expressly did not “decide if the savings

clause in § 2255(e) would permit a prisoner to bring a § 2241 petition claiming that

he was sentenced to a term of imprisonment exceeding the statutory maximum.”

Id. Thus, Gilbert made clear that the holding in Wofford was limited to sentencing

claims other than those like the one Mr. Williams asserts here.

      Gilbert explained that “Bailey actual innocence claims are what the Wofford

panel had in mind when it stated that the savings clause would permit a prisoner to

bring a § 2241 petition claiming that a retroactively applicable, circuit law-busting

decision of the Supreme Court established that he had been convicted of a

nonexistent crime.” Id. at 1319 (citing Wofford, 177 F.3d at 1242–45). The en

banc court clarified “[t]hat statement was, however, only dicta because all of

Wofford’s claims were sentencing claims, ‘none of which rested upon a circuit


                                           41
             Case: 11-13306    Date Filed: 04/11/2013    Page: 42 of 51


law-busting, retroactively applicable Supreme Court decision.’” Id. (alterations

omitted) (citing Wofford, 

177 F.3d at 1245

) (emphasis added). Gilbert made clear

that the actual holding of Wofford “is simply that the savings clause does not cover

sentence claims that could have been raised in earlier proceedings.” 

Id.

 (citing

Wofford, 177 F.3d at 1244–45)

      Indeed, the Gilbert opinion expressly acknowledged that “[t]he Wofford

opinion also contains dicta that the savings clause ‘may conceivably’ apply to

some sentencing claims in some circumstances where there has been a fundamental

defect in sentencing that the prisoner had no opportunity to have corrected before

the end of his § 2255 proceeding.” Id. at 1319 n.20 (emphasis added). The Gilbert

en banc majority speculated that the Wofford panel “may have had in mind . . .

pure Begay errors, by which we mean errors in the application of the ‘violent

felony’ enhancement as defined in 

18 U.S.C. § 924

(e)(2)(B), resulting in a higher

statutory minimum and maximum sentence under § 924(e).” Id. The Gilbert

court acknowledged that “[a] Begay error in the classification of a prior conviction

that was used to impose an enhanced sentence under § 924(e) would necessarily

have resulted in the defendant being sentenced to a term of imprisonment that

exceeded what would have been the statutory maximum without the error.” Id.

Based on this, Gilbert observed that “a pure Begay error would fit within the

government’s concession that the savings clause applies to errors that resulted in a


                                         42
             Case: 11-13306      Date Filed: 04/11/2013    Page: 43 of 51


sentence beyond the statutory maximum that would have applied but for the error.”

Id. However, because Mr. Gilbert claimed only that he was wrongly classified as a

career offender under the Guidelines, the en banc court concluded “we have no

occasion to decide whether what the Wofford dicta conceived might be the law,

and what the government concedes should be the law, is actually the law.” Id.

      In putting Wofford to the use it does, the majority also ignores an earlier

panel of this court which held that Wofford’s threshold test does not apply to a

defendant raising a pure Begay error. Not long ago, that panel observed that,

“[s]itting en banc . . . we recently retreated from the purported three-factor test

enumerated in Wofford, calling it ‘only dicta,’ and explaining that ‘[t]he actual

holding of the Wofford decision . . . is simply that the savings clause does not

cover sentence claims that could have been raised in earlier proceedings.” Turner

v. Warden Coleman FCI (Medium), No. 10–12094, ___ F. 3d. ___, ___, 

2013 WL 646089, * 7

 (11th Cir. Feb. 22, 2013).

      Given that Wofford’s threshold test is dicta, at least as it relates to sentences

imposed above the statutory maximum, it is not binding on this panel. Therefore, I

dissent from the majority’s application of that test to conclude that this Court lacks

jurisdiction to consider a claim that a defendant was sentenced above the

maximum authorized by Congress. By applying Wofford’s threshold test to Mr.

Williams’s pure Begay error claim, the majority is asking and answering the wrong

                                           43
             Case: 11-13306     Date Filed: 04/11/2013    Page: 44 of 51


jurisdictional question. The correct question to ask is whether Mr. Williams was

erroneously sentenced as an armed career criminal in light of Begay. If he was, the

federal courts never had jurisdiction to sentence him above the 10 year maximum

allowed by law. The existence or nonexistence of circuit precedent which

conflicts with Begay cannot operate to confer jurisdiction on this Court. Neither

can it decide the question of whether § 2255 is inadequate or ineffective.

      Nevertheless, the majority is not willing here to examine the merits of Mr.

Williams’s claim that he was sentenced to more time than allowed by the statute

because he cannot identify preexisting precedent from this Court that foreclosed

his claim that he was wrongly classified as an armed career criminal at the time of

his direct appeal or initial § 2255 motion. Majority Op. at 23–24. But again, the

preexistence or nonexistence of circuit precedent has no bearing on the

fundamental defect in a defendant’s armed career criminal classification once a

retroactively applicable Supreme Court decision demonstrates that the defendant

was sentenced to longer than the statute allows. If Mr. Williams is right, and

Begay establishes that two of his Florida burglaries do not count as “violent

felonies” under the ACCA, then Mr. Williams was never an armed career criminal.

Begay did not change the meaning of the ACCA that may have prevailed in this

Court or the district courts, but instead provided “an authoritative statement of

what the statute meant before as well as after the decision of the case giving rise to


                                          44
             Case: 11-13306     Date Filed: 04/11/2013    Page: 45 of 51


that construction.” Rivers v. Roadway Express, Inc., 

511 U.S. 298

, 312 –13 &

n.12, 

114 S. Ct. 1510

, 1519 & n.12 (1994); see also Bunkley v. Florida, 538 U.S

835, 840–42, 

123 S. Ct. 2020

, 2022–24 (2003); Fiore v. White, 

531 U.S. 225, 226

,

121 S. Ct. 712, 713

 (2001) (holding a defendant’s conviction and continued

incarceration violates due process where it is based on conduct that a criminal

statute, as properly interpreted, does not prohibit). The issue is not whether Mr.

Williams may no longer be considered an armed career criminal, but rather

whether he was ever an armed career criminal to begin with. If Mr. Williams can

show that he was never an armed career criminal in light of Begay, then his

continued incarceration violates due process and § 2255 is “inadequate or

ineffective to test the legality of his detention.” 

28 U.S.C. § 2255

(e).

      I certainly accept that “the point where finality holds its own against error

correction is reached not later than the end of the first round of collateral review”

for claims of sentencing error where a defendant is serving a sentence below the

term of imprisonment allowed by the statute. Gilbert, 

640 F. 3d at 1312

. But

concerns about finality do not trump the principle that “a defendant may not

receive a greater sentence than the legislature has authorized.” United States v.

DiFrancesco, 

449 U.S. 117, 139

, 

101 S. Ct. 426, 438

 (1980); see also United States

v. Bushert, 

997 F.2d 1343

, 1350 n.18 (11th Cir. 1993) (“It is both axiomatic and




                                          45
              Case: 11-13306     Date Filed: 04/11/2013     Page: 46 of 51


jurisdictional that a court of the United States may not impose a penalty for a crime

beyond that which is authorized by statute.”).

      For us to sanction the incarceration of a prisoner for a period longer than

Congress has authorized violates important separation-of-powers principles.

“[T]he power of punishment is vested in the legislative, not in the judicial,

department,” and “[i]t is the legislature, not the Court, which is to . . . ordain [the]

punishment.” United States v. Wiltberger, 

18 U.S. (5 Wheat.) 76, 95

 (1820).

Indeed, a sentence beyond the maximum provided by law is void because federal

courts have no authority to impose a punishment that the legislature has not

authorized it to impose. See Chapman v. United States, 

500 U.S. 453, 465

, 

111 S. Ct. 1919, 1927

 (1991) (holding that a defendant is “eligible for, and the court may

impose, whatever punishment is authorized by statute for his offense”); see also

Harmelin v. Michigan, 

501 U.S. 957, 975

, 

111 S. Ct. 2680, 2691

 (1991) (Scalia, J.)

(“There were no common-law punishments in the federal system. . . .”); Jones v.

Thomas, 

491 U.S. 376, 383

, 

109 S. Ct. 2522, 2526

 (1989) (explaining that the

federal habeas petitioner in Ex parte Lange, 

85 U.S. (18 Wall.) 163

 (1874), was

entitled to habeas relief because his sentence of imprisonment and a fine

“obviously exceeded that authorized by the legislature” where the crime that he

was convicted of carried a punishment of imprisonment or a fine). Cf. United

States v. Bass, 

404 U.S. 336, 348

, 

92 S. Ct. 515, 523

 (1971) (noting “the


                                           46
               Case: 11-13306        Date Filed: 04/11/2013        Page: 47 of 51


instinctive distastes against men languishing in prison unless the lawmaker has

clearly said they should”) (quotation marks omitted).

       At the time Mr. Williams filed his first § 2255 motion—long before Begay

authoritatively interpreted § 924(e)(2)(B)—he claimed he was not properly

sentenced as an armed career criminal because his convictions for burglary under

Florida law were not “violent felon[ies]” as that term is used in the ACCA. Thus,

although the majority says there was no binding circuit precedent foreclosing Mr.

Williams’s claim on direct appeal or in his first § 2255 petition, he has certainly

been treated as though there was. Indeed, to see that his argument was foreclosed,

we need look no further than the fact that our Court denied Mr. Williams a

certificate of appealability (COA) when he raised the issue of whether his prior

convictions qualified as predicate offenses for 

18 U.S.C. § 924

(e) in his first

§ 2255 petition for habeas relief.3 Williams v. United States, No. 03-15325 (11th

Cir. Jan. 27, 2004). In doing so, we certainly appeared to endorse the District

Court’s conclusion that his claim was without “factual or legal support.” 4


3
  He raised this issue in the context of an ineffective assistance of counsel claim—i.e., his
lawyer was ineffective for failing to argue that his prior burglary convictions did not qualify as
predicate offenses for 

18 U.S.C. § 924

(e).
4
  Given that neither the District Court nor this Court viewed any of Mr. Williams’s § 2255
claims as sufficient to satisfy the low threshold for obtaining a COA, it seems odd to say that his
claims were not previously foreclosed. The well-worn standard for obtaining a COA under 

28 U.S.C. § 2253

(c)(2), is that “a habeas prisoner must make a substantial showing of the denial of
a constitutional right, a demonstration that . . . includes showing that reasonable jurists could
debate whether . . . the petition should have been resolved in a different manner or that the issues
                                                 47
              Case: 11-13306      Date Filed: 04/11/2013      Page: 48 of 51


Williams v. United States, No. 1:00-cv-02452 (S.D. Fla. Jan. 29, 2003) (adopting

the Magistrate Judge’s Report and Recommendation “in its entirety,” and denying

Mr. Williams’s § 2255 petition). We then went on to deny Mr. Williams’s motion

for reconsideration of this argument. Williams v. United States, No. 03-15325

(11th Cir. Mar. 23, 2004). And now in this iteration of Mr. Williams’s attempts to

have us consider whether he is serving a sentence beyond that allowed by law, the

majority imposes a new hurdle, grasped from Wofford, which never ruled on this

type of claim. Since Begay was decided by the United States Supreme Court no

court has ever evaluated Mr. Williams’s prior convictions under the standards it

announced.

       As the majority has recognized—and both the government and Mr. Williams

agree—the District Court was mistaken when it concluded that Mr. Williams was

“foreclosed from challenging his sentence . . . using 

28 U.S.C. § 2255

(e)’s savings

clause” by this Court’s decision in Gilbert. Doc. 24 at 2. Insofar as the issue he

now raises was not decided by this Court in Gilbert, I would reverse the District

Court’s order and remand for consideration (for the first time) of the question of

whether Mr. Williams’s 1989 and 1990 Florida burglary convictions are violent

felonies under the ACCA’s residual clause, and under the analysis provided in



presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 

529 U.S. 473

, 483–84, 

120 S. Ct. 1595

, 1603–04 (2000) (quotation marks omitted).


                                             48
             Case: 11-13306     Date Filed: 04/11/2013    Page: 49 of 51


Begay v. United States, 

553 U.S. 137

, 

128 S. Ct. 1581

 (2008). See Okongwu v.

Reno, 

229 F.3d 1327

, 1330–31 (11th Cir. 2000) (remanding case for consideration

of issues not reached where the District Court improperly dismissed for lack of

jurisdiction). If Mr. Williams can demonstrate to the District Court that he was

erroneously classified as an armed career criminal, he is entitled to habeas relief

under § 2241.

      For these reasons, I respectfully dissent.




                                          49
                 Case: 11-13306         Date Filed: 04/11/2013           Page: 50 of 51




                               MR. WILLIAMS’S HABEAS FILINGS
Filing                Relevant Issue(s) Raised               Disposition
First § 2255          •   Mr. Williams’s counsel was         •   Dist. Ct. denied relief, determining that
Petition (S.D. Fla.       ineffective for having failed to       “no factual or legal support existed for . . .
July 2000)                object to the use of his Florida       an objection” that Mr. Williams’s Florida
                          burglary convictions as                burglary convictions were not predicate
                          predicate offenses for ACCA            offenses for ACCA enhancement, and
                          enhancement because                    denied Williams’s request for a COA, No.
                          Florida’s burglary statute             1:00-cv-2452 (S.D. Fla. Jan. 29, 2003)
                          encompasses conduct beyond         •   11th Cir. denied Williams’s request for a
                          “generic burglary” as defined          COA
                          by the Sup. Ct. in Taylor v.       •   11th Cir. denied Williams’s motion for
                          United States, 

495 U.S. 575

            reconsideration, observing that
                          (1990)                                 “[a]lthough the use of appellant’s 1989
                                                                 burglary conviction as a predicate for the
                                                                 armed career criminal enhancement was
                                                                 arguably erroneous under Taylor . . . that
                                                                 point is ultimately immaterial,” No. 03-
                                                                 15325 (11th Cir. Mar. 23, 2004)
                                                             •   Sup. Ct. denied Williams’s petition for
                                                                 certiorari, 

543 U.S. 864

 (2004), reh’g
                                                                 denied, 

543 U.S. 1083

 (2005)
First Rule 60(b)      •   Dist. Ct.’s denial of              •   Dist. Ct. denied relief without
Motion (S.D. Fla.         Williams’s § 2255 motion was           consideration of the merits and denied
Apr. 2005)                erroneous under Shepard v.             Williams’s request for a COA
                          United States, 

544 U.S. 13

         •   11th Cir. denied Williams’s request for a
                          (2005)                                 COA
                                                             •   Sup. Ct. denied Williams’s petition for
                                                                 certiorari, 

547 U.S. 1141

 (2006), reh’g
                                                                 denied, 

548 U.S. 932

 (2006)
Application to File •     Dist. Ct. enhanced Williams’s      •   11th Cir. denied application, determining
Second/Successive         sentence based on factual              that Williams’s claims did not satisfy
§ 2255 Petition           findings not admitted by               gatekeeping criteria of 28 U.S.C.
(11th Cir. Jan.           Williams                               § 2244(b)(2), No. 06-10627 (11th Cir.
2006)               •     Dist. Ct. violated Williams’s          Feb. 10, 2006)
                          right to due process by failing
                          to use reliable documents in
                          determining that he had
                          qualifying prior convictions
                          for ACCA enhancement
Second Rule 60(b)     •   Dist. Ct. erred under Taylor       •   Dist. Ct. denied relief without
Motion (S.D. Fla.         and Shepard in determining             consideration of the merits and denied
June 2006)                that Williams qualified for            Williams’s request for a COA
                          ACCA enhancement                   •   11th Cir. denied Williams’s request for a
                                                                 COA, denied Williams’s motion for
                                                                 reconsideration, and denied Williams’s
                                                                 motion to proceed in forma pauperis

                                                     50
                 Case: 11-13306         Date Filed: 04/11/2013         Page: 51 of 51


First § 2241          •   Dist. Ct. erred under Taylor    •    Dist. Ct. dismissed petition upon
Petition (E.D.N.C.        and Shepard in determining           government’s motion because Williams
July 2007)                that Williams qualified for          “failed to satisfy [§ 2255’s] gatekeeping
                          ACCA enhancement                     provision,” No. 5:07-hc-2143 (E.D.N.C.
                                                               Feb. 19, 2008)
                                                          •    4th Cir. summarily affirmed in
                                                               unpublished opinion
First § 2255(f)(3)    •   Dist. Ct. erred in applying      •   Dist. Ct. denied relief without
Petition (S.D. Fla.       ACCA enhancement because             consideration of the merits
Sept. 2010)               under the Sup. Ct.’s analysis in
                          Begay v. United States, 

553 U.S. 137

 (2008), Williams had
                          only two ACCA qualifying
                          convictions
Instant § 2241        •   Dist. Ct. erred in applying      •   Dist. Ct. dismissed, determining that under
Petition (S.D. Ga.        ACCA enhancement because             Gilbert v. United States, 

640 F.3d 1293

Nov. 2010)                Williams’s Florida burglary          (11th Cir. 2011) (en banc), “a petitioner is
                          convictions are not ACCA             foreclosed from challenging his sentence,
                          predicate offenses under             rather than his conviction, using 28 U.S.C.
                          Begay                                § 2255(e)’s savings clause.” Doc. 24 at 1–
                                                               2.
                                                          •    11th Cir. rejects Dist. Ct.’s Gilbert
                                                               analysis but affirms dismissal, determining
                                                               that § 2255(e) establishes jurisdictional
                                                               limitations on § 2241 petitions and that
                                                               Williams’s claim does not fall within
                                                               those limitations because no Circuit
                                                               precedent foreclosed him from raising his
                                                               claim in his initial habeas petition, No. 11-
                                                               13306 (11th Cir. argued Jan. 15, 2012)




                                                    51