                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 10-15791         ELEVENTH CIRCUIT
                                        Non-Argument Calendar       MARCH 30, 2012
                                      ________________________        JOHN LEY
                                                                       CLERK
           D.C. Docket Nos. 1:10-cv-02673-ODE; 1:92-cr-00145-ODE-JMF-1



LORENZO E. FLINT, JR.,

llllllllllllllllllllllllllllllllllllllll                            Petitioner-Appellant,

                                                versus

UNITED STATES OF AMERICA,

lllllllllllllllllllllllllllllllllllllll                            Respondent-Appellee.

                                     ________________________

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

                                           (March 30, 2012)

Before TJOFLAT, EDMONDSON, and FAY, Circuit Judges.

PER CURIAM:
      Lorenzo Flint, Jr., a federal prisoner proceeding pro se, appeals the district

court’s order denying his 28 U.S.C. § 2241 habeas petition. On appeal, Flint

argues that the district court erred in concluding that he could not proceed under

§ 2241 because his claims did not satisfy the savings clause of 28 U.S.C.

§ 2255(e). For its part, the government asserts that we must dismiss this appeal

for lack of jurisdiction because Flint failed to obtain a certificate of appealability

(“COA”). We conclude that we have jurisdiction over this appeal, but, for the

reasons set forth below, we affirm the district court’s denial of Flint’s petition.

                                           I.

      Flint, a federal prisoner serving 360-month sentences for conspiracy to

possess with intent to distribute cocaine base and cocaine hydrochloride, and

possession with intent to distribute cocaine base, filed a pro se § 2241 habeas

petition raising two grounds for relief. First, in Ground A of his petition, Flint

asserted that the sentencing court should not have imposed a criminal history point

for his 1986 Florida conviction because he was not represented by counsel in that

proceeding. Although the sentencing court had found that he was, in fact,

represented in that case, Flint explained that the sentencing court’s determination

was based on reports prepared by a docket clerk and a probation officer. Flint

argued that the court’s consideration of those documents violated Shepard v.

                                           2
United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), Johnson v.

United States, 559 U.S. ___, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), and United

States v. Sneed, 600 F.3d 1326 (11th Cir. 2010). In Ground B of his petition, Flint

maintained that the sentencing court had violated Kimbrough v. United States, 552

U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), by sentencing him under the

“disparate and mandatory” crack cocaine guidelines.

      The district court denied Flint’s petition. The district court concluded that

Flint could not bring a § 2241 petition because he could not satisfy the savings

clause of 28 U.S.C. § 2255(e). With respect to Ground A, the district court noted

that the Supreme Court case cited by Flint, Johnson, addressed the definition of

“violent felony” under the Armed Career Criminal Act, not whether a district court

is precluded from considering “non-judicial” documents in determining the nature

of a defendant’s prior conviction. The district court further observed that Flint

could not rely upon Sneed because it was not a Supreme Court decision. The

district court also noted that Flint could not bring a claim based on Kimbrough

because such a claim would fall outside the one-year statute of limitations

applicable to both § 2241 petitions and § 2255 motions.

      Although Flint labeled his filing as a § 2241 petition, the district court

concluded that he could not proceed under § 2241 because his claims did not

                                          3
satisfy the savings clause. Therefore, the district court construed his petition as a

28 U.S.C. § 2255 motion. Since Flint had already filed a previous § 2255 motion,

and had not obtained permission from this Court to file a second or successive

motion, the district court denied Flint’s petition. The district court declined to

issue a COA.

      Flint filed a notice of appeal and a motion for leave to proceed in forma

pauperis, which we also construed as a motion for a COA. We ultimately denied

the motion for a COA as moot, ruling that Flint did not need to obtain a COA

because he was proceeding under § 2241. The government subsequently moved to

dismiss Flint’s appeal for lack of appellate jurisdiction, arguing that a COA was

required because the district court had recharacterized Flint’s § 2241 petition as a

§ 2255 motion. We ordered that the motion to dismiss be carried with the case.

                                          II.

      We review our own jurisdiction de novo. Williams v. Chatman, 510 F.3d

1290, 1293 (11th Cir. 2007). Under the Antiterrorism and Effective Death Penalty

Act, a federal prisoner must obtain a COA in order to appeal the denial of a § 2255

motion. See 28 U.S.C. § 2253(c)(1)(B). On the other hand, a federal prisoner

does not need a COA to appeal the denial of a § 2241 petition. Sawyer v. Holder,

326 F.3d 1363, 1364 n.3 (11th Cir. 2003).

                                          4
      Here, although the district court construed Flint’s § 2241 petition as a

§ 2255 motion, it did so only after concluding that Flint was not entitled to

proceed under the savings clause. Thus, the real reason why the district court

denied Flint’s petition was because he could not bring his claims under § 2241.

Because no COA is required to appeal the denial of a § 2241 petition, we may

exercise jurisdiction over Flint’s appeal. See id.

                                         III.

      The availability of habeas relief under 28 U.S.C. § 2241 presents a question

of law that we review de novo. Darby v. Hawk–Sawyer, 405 F.3d 942, 944 (11th

Cir. 2005). “Typically, collateral attacks on the validity of a federal sentence must

be brought under § 2255.” Id. Under certain limited circumstances, however, the

savings clause of § 2255(e) permits a federal prisoner to file a habeas petition

pursuant to § 2241. Id. at 945. The savings clause provides:

      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). Accordingly, a federal prisoner may file a § 2241 petition



                                          5
attacking his conviction and sentence if he can establish that the remedy provided

under § 2255 is inadequate or ineffective in his case. Darby, 405 F.3d at 945.

      In Wofford, we explained that three requirements must be satisfied before a

federal prisoner may invoke the savings clause and bring a § 2241 petition. First,

the prisoner’s claim must be based on a retroactively applicable Supreme Court

decision. Wofford, 177 F.3d at 1244. Second, that Supreme Court decision must

establish that the petitioner was convicted for a nonexistent offense. Id. Third,

the Supreme Court decision must overrule prior circuit precedent. Id. Moreover,

we recently 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.” Gilbert v. United States, 640 F.3d 1293, 1323 (11th Cir. 2011),

petition for cert. filed, (U.S. Aug. 17, 2011) (No. 11-6053).

      Flint’s Shepard, Johnson, and Kimbrough claims are foreclosed by Gilbert.

Even assuming for the sake of argument that the sentencing court erred in

calculating Flint’s criminal history and in sentencing him under the crack cocaine

guideline, Flint’s 360-month sentences did not exceed the applicable statutory

maximum term of life imprisonment. See 21 U.S.C. § 841(b)(1)(A) (1993) (Flint

possessed over 50 grams of cocaine base, and, therefore, was subject to a statutory

                                          6
maximum sentence of life imprisonment). Therefore, the district court properly

concluded that Flint could not proceed under the savings clause. See Gilbert, 640

F.3d at 1323.

      Accordingly, after review of the record and the parties’ briefs, we affirm the

denial of Flint’s § 2241 petition.

      AFFIRMED.




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