           Case: 12-10366   Date Filed: 01/23/2015   Page: 1 of 5


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-10366
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 5:10-cv-00366-JSM-TBS




GLEN EDWARD MATHEWS,

                                                          Petitioner-Appellant,

                                  versus

WARDEN, FCC COLEMAN-LOW,

                                                         Respondent-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (January 23, 2015)



Before HULL, ROSENBAUM, and EDMONDSON, Circuit Judges.
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PER CURIAM:



      Glen Mathews, a federal prisoner proceeding pro se, appeals the district

court’s denial on the merits of his 28 U.S.C. § 2241 petition, which he filed

pursuant to the “savings clause” in 28 U.S.C. § 2255(e). On appeal, he contends

that the district court erred by denying his § 2241 petition. Briefly stated, he says

that his 1996 federal sentence under the Armed Career Criminal Act’s (“ACCA”)

enumerated-offense clause, 18 U.S.C. § 924(e)(2)(B)(ii), was unlawful in the light

of the Supreme Court’s decisions in Shepard v. United States, 125 S.Ct. 1254

(2005); James v. United States, 127 S.Ct. 1586 (2007); Begay v. United States, 128

S.Ct. 1581 (2008); Chambers v. United States, 129 S.Ct. 687 (2009); and Johnson

v. United States, 130 S.Ct. 1265 (2010). He also argues that circuit precedent

previously foreclosed him from arguing that his three earlier Florida burglary

convictions under Fla. Stat. Ann. § 810.02 (1979) were not ACCA predicate

violent felonies because the modified categorical approach announced in Shepard

was not available during his sentencing, direct appeal, or initial § 2255

proceedings.

      Whether a prisoner may bring a § 2241 petition under § 2255(e)’s savings

clause is a question of law we review de novo. Bryant v. Warden, FCC

Coleman-Medium, 738 F.3d 1253, 1262 (11th Cir. 2013). The applicability of the



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savings clause is a threshold jurisdictional issue, and the savings clause imposes a

subject matter jurisdictional limit on § 2241 petitions. Id. The petitioner bears the

burden of demonstrating that the § 2255 remedy was “inadequate or ineffective to

test the legality of his detention” for purposes of § 2255(e). Id.

      Mathews was convicted for being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1) and 924(e)(1) and, in 1996, was sentenced to

293 months’ imprisonment. A person convicted of knowingly violating

§ 922(g)(1) shall be imprisoned “not more than ten years.” 18 U.S.C. § 924(a)(2).

But for defendants who violate § 922(g) after sustaining three previous convictions

for violent felonies, the ACCA imposes a 15-year mandatory-minimum sentence

and a maximum sentence of life imprisonment. Id. § 924(e).

      Generally speaking, once a conviction becomes final, a federal prisoner may

challenge his detention only through a § 2255 motion. But when a § 2255 motion

would be “inadequate or ineffective to test the legality of his detention,” the

savings clause of § 2255(e) permits the prisoner to file a § 2241 petition for habeas

relief. See 28 U.S.C. § 2255(e). Restrictions on successive § 2255 motions,

standing alone, do not render § 2255 “inadequate or ineffective” within the

meaning of § 2255(e)’s savings clause. Bryant, 738 F.3d at 1267.

      For a petitioner to bring a § 2241 challenge to the legality of his detention on

the ground that an earlier state conviction was not a predicate offense for purposes



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of the ACCA, he must make a five-part showing that an earlier § 2255 motion was

“inadequate or ineffective to test the legality of his detention.” Id. at 1274. First, a

petitioner must show that, “throughout his sentencing, direct appeal, and first

§ 2255 proceeding, [this] Circuit’s binding precedent had specifically addressed

[his] distinct prior state conviction that triggered § 924(e) and had squarely

foreclosed [his] § 924(e) claim that he was erroneously sentenced above the

10-year statutory maximum penalty in § 924(a).” Id. Second, a petitioner must

identify a Supreme Court decision announced after his first § 2255 proceeding that

overturned our precedent “that had squarely foreclosed [his] § 924(e) claim.” Id.

Third, he must show that the Supreme Court’s new rule applies retroactively on

collateral review. Id. Fourth, he must show that, as a result of the new rule being

retroactive, his current sentence exceeds § 924(a)’s ten-year statutory maximum.

Id. Finally, he must show that “the savings clause in § 2255(e) reaches his pure

§ 924(e)[] error claim of illegal detention above the statutory maximum penalty in

§ 924(a).” Id.

      Upon review of the entire record, and after consideration of the parties’

appellate briefs, we vacate and remand.

      Here, the district court erred by denying Mathews’s § 2241 petition on the

merits, rather than dismissing it for lack of subject matter jurisdiction. First,

Mathews has failed to establish that his claim -- that his three earlier burglary



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convictions did not qualify as violent felonies under the ACCA’s

enumerated-offense clause -- was squarely foreclosed by binding Eleventh Circuit

precedent at the time of his 1996 sentencing, 1997 direct appeal, or 1998 filing of

his first § 2255 motion. Cf. Williams v. Warden, 713 F.3d 1332, 1344-45 (11th

Cir. 2013 (explaining that “[n]o Eleventh Circuit precedent squarely held that

burglary of a dwelling, as defined in Fla. Stat. § 810.02, was a violent felony for

ACCA purposes” between 1990 and 2004). Moreover, Mathews has also failed to

identify an intervening Supreme Court decision that overturned such alleged

binding circuit precedent. Mathews’s reliance on Shepard, James, Begay,

Chambers, and Johnson as circuit-law-busting Supreme Court decisions is

misplaced: none of these cases decided whether a burglary conviction under Fla.

Stat. Ann. § 810.02 constituted a violent felony under the ACCA’s

enumerated-offense clause. Because Mathews has failed to satisfy the

requirements of § 2255(e)’s savings clause, the district court lacked subject matter

jurisdiction to consider his petition on the merits. Accordingly, we vacate and

remand with instructions to dismiss the petition.

      VACATED AND REMANDED.




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