           Case: 12-12848   Date Filed: 06/05/2013   Page: 1 of 9




                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-12848
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 5:11-cv-00062-SDM-TBS


ALBERT TERRILL JONES,

                                                          Petitioner-Appellant,

                                  versus

WARDEN, FCC COLEMAN - MEDIUM,

                                                         Respondent-Appellee.

                       ________________________

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

                              (June 5, 2013)

Before TJOFLAT, HULL and MARCUS, Circuit Judges.

PER CURIAM:
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       Albert Terrill Jones, a pro se federal prisoner, appeals the district court’s

dismissal of his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C.

§ 2241. After review, we affirm. 1

                                   I. BACKGROUND

A.     Direct Appeal

       In 2002, Jones was charged with conspiracy to possess with intent to

distribute five kilograms or more of cocaine, fifty grams or more of crack cocaine

and 100 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a),

841(b)(1)(A)(ii)(II), (iii) and (B)(vii), and 846. The charged conspiracy involved

multiple participants who communicated with each other via text messages. Prior

to trial, the district court granted Jones’s motion to suppress the electronic records

of the text messages because they were obtained without a warrant. At trial,

however, the district court permitted one of Jones’s co-conspirators to testify about

the contents of the text messages he sent and received through his pager. After the

jury found Jones guilty of the drug conspiracy, the district court sentenced Jones to

300 months’ imprisonment.

       On direct appeal, Jones challenged, inter alia, the admission of his co-

conspirator’s testimony about the text messages. This Court affirmed Jones’s

conviction and sentence. See United States v. Jones, 149 F. App’x 954 (11th Cir.

       1
        We review de novo the availability of habeas relief under § 2241. Cook v. Wiley, 208
F.3d 1314, 1317 (11th Cir. 2000).
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2005). The Court concluded, among other things, that the district court did not

abuse its discretion in admitting the co-conspirator’s testimony because Jones did

not have an expectation of privacy in the text messages. Id. at 959.

B.    Jones’s § 2255 Motion

      In 2006, Jones filed his first motion pursuant to 28 U.S.C § 2255. Jones’s

§ 2255 motion raised several challenges based on the text message evidence,

including that: (1) Jones’s conviction based on the unlawfully obtained text

messages violated his due process rights; (2) the district court violated Jones’s

Fourth Amendment rights by admitting text message evidence at trial after granting

Jones’s motion to suppress; (3) the grand jury illegally indicted him based on the

unlawfully obtained text messages; and (4) Jones’s trial counsel was ineffective for

failing to file a motion to dismiss his indictment or to prevent the admission of the

text message evidence at trial.

      The district court concluded that the first two § 2255 claims were

procedurally barred because they already had been raised on direct appeal and the

third claim was procedurally barred because Jones could have, but did not, raise it

on direct appeal. The district court denied the fourth claim on the merits,

concluding Jones had not shown that his counsel’s performance was deficient or

that it prejudiced Jones because this Court had concluded on direct appeal that the

evidence about the text messages was admissible.


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C.     Jones’s § 3582 Motions

       In 2008, the district court reduced Jones’s sentence from 300 months to 243

months, pursuant to 18 U.S.C. § 3582(c)(2), based on Amendment 706 to the

Sentencing Guidelines. On appeal, this Court affirmed Jones’s modified sentence,

rejecting Jones’s contention that the district court should have given him a greater

reduction. See United States v. Jones, 324 F. App’x 794 (11th Cir. 2009). In

2011, the district court denied Jones’s second § 3582(c)(2) motion, based on

Amendment 750, and this Court affirmed. See United States v. Jones, 486 F.

App’x 1 (11th Cir. 2012).

D.     Jones’s § 2241 Petition

       In 2011, Jones also filed this § 2241 petition challenging the validity of his

conviction and sentence. Specifically, Jones claimed that he was “actually

innocent” of the charged drug conspiracy because the government had unlawfully

obtained the text message evidence used to indict and convict him; 2 and (2) that he

was “actually innocent” of his mandatory minimum ten-year sentence in light of

the Fair Sentencing Act (“FSA”), which amended the mandatory minimum

sentences for crack cocaine offenses in 21 U.S.C. § 841. Jones admitted that he

had already filed one § 2255 motion, but argued that he should be allowed to


       2
        Jones’s § 2241 petition also alleged that his conviction was unlawful because the jury
was not given a special verdict form differentiating the three drugs he was charged with
conspiring to possess. Jones does not mention this claim in this appeal.
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proceed under § 2241 because § 2255 was inadequate and ineffective to challenge

the legality of his detention.

      The district court dismissed Jones’s § 2241 petition. The district court found

that: (1) Jones’s petition challenged the validity of his sentence and was barred as a

successive § 2255 petition; and (2) Jones had not shown that the “savings clause”

of § 2255 applied and, therefore, could not seek relief under § 2241. Jones

appealed.

                                 II. DISCUSSION

      Typically, collateral attacks on the validity of a federal conviction or

sentence must be brought under § 2255. Sawyer v. Holder, 326 F.3d 1363, 1365

(11th Cir. 2003). When, as here, the federal prisoner previously filed a § 2255

motion, he is barred from filing second and successive motions unless his claims

rely upon the existence of newly discovered evidence or a new rule of retroactively

applicable constitutional law. See 28 U.S.C. § 2255(h); United States v. Diaz-

Clark, 292 F.3d 1310, 1316 (11th Cir. 2002).

      On appeal, Jones concedes that he cannot meet the requirements of

§ 2255(h) to pursue his claims in a successive § 2255 motion. Further, Jones did

not seek this Court’s authorization to file a successive § 2255 motion. See 28

U.S.C. § 2244(b)(3) (requiring an applicant to first apply for and receive




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permission from this Court before filing a successive § 2255 motion in the district

court); In re Blackshire, 98 F.3d 1293, 1293 (11th Cir. 1996).

      Under limited circumstances, however, a provision of § 2255, known as the

“savings clause,” permits a federal prisoner to challenge the legality of his

detention in a § 2241 petition. See 28 U.S.C. § 2255(e). Under the savings clause,

a federal prisoner can bring a § 2241 petition if an otherwise available remedy

under § 2255 is “inadequate or ineffective to test the legality of his detention.” Id.

Although the statute does not define “inadequate and ineffective,” we do know that

the restriction against second and successive § 2255 motions in § 2255(h), standing

alone, does not render § 2255’s remedy “inadequate or ineffective” within the

meaning of the savings clause. Gilbert v. United States, 640 F.3d 1293, 1308 (11th

Cir. 2011) (en banc), cert. denied, 132 S. Ct. 1001 (2012). Thus, a prisoner cannot

circumvent the requirements for filing a successive § 2255 motion merely by filing

a § 2241 petition. Wofford v. Scott, 177 F.3d 1236, 1245 (11th Cir. 1999).

      In this particular case, we need not discuss or decide what kind of claim

would be covered by the savings clause because the types of claims Jones makes

here so clearly do not open the portal to the savings clause’s limited jurisdiction.

For example, with respect to his conviction claim, Jones does not identify any

retroactively applicable Supreme Court decision, much less one that establishes




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that Jones was convicted of a nonexistent offense. See Gilbert, 640 F.3d at 1319-

20.

      Jones argues that United States v. Jones, 565 U.S. __, 132 S. Ct. 945 (2012),

rendered him actually innocent, but this is not correct. In Jones, the Supreme

Court concluded that the government’s installation and use of a GPS device on a

suspect’s vehicle constituted a search for purposes of the Fourth Amendment.

Jones, 565 U.S. at __, 132 S. Ct. at 949. The Jones decision does not help Jones

here for several reasons. First, although Jones characterizes his challenge to his

conviction as an “actual innocence” claim, in fact Jones’s conviction claim—that

he was wrongly charged and then convicted based on unlawfully obtained text

message evidence—is one of legal, rather than factual, innocence. See Wofford,

177 F.3d at 1244 n.3 (citing Bousley v. United States, 523 U.S. 614, 623, 118 S.

Ct. 1604, 1611 (1998), which explained that actual innocence means “means

factual innocence, not mere legal insufficiency).

      Second, Jones raised the text messages issues in both his direct appeal and

his first § 2255 motion. Third, Jones deals with the admissibility of evidence and

does not establish that Jones was convicted of a non-existent crime or is factually

innocent of the charged drug conspiracy. Fourth, in any event, Jones was not made

retroactive.




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      As to his FSA sentencing claim, Jones challenges the length of his sentence,

but does not claim it exceeded his statutory maximum. Instead, Jones cites Dorsey

v. United States, 567 U.S. __, 132 S. Ct. 2321 (2012). In Dorsey, the Supreme

Court held that the FSA applied to a very narrow class of offenders who had

committed their offenses before the FSA’s August 3, 2010 effective date, but who

were sentenced after that date. Dorsey, 567 U.S. at __, 132 S. Ct. at 2326.

However, nothing in Dorsey indicates that the FSA applies to defendants, like

Jones, who committed their offenses and were sentenced prior to the FSA’s

enactment. United States v. Hippolyte, 712 F.3d 535, 542 (11th Cir. 2013); United

States v. Berry, 701 F.3d 374, 377 (11th Cir. 2012).

      Jones also argues that the remedy provided by § 2255 is “inadequate or

ineffective” because he already has filed his first (unsuccessful) § 2255 motion and

cannot meet the requirements of § 2255(h) for filing a second § 2255 motion. This

Court already rejected that argument, concluding that “the existence of the

statutory bar on second and successive motions cannot mean that § 2255 is

‘inadequate or ineffective’ to test the legality of [the prisoner’s] detention within

the meaning of the savings clause.” Gilbert, 640 F.3d at 1308. Thus, the mere fact

that Jones cannot pursue his claims in a second § 2255 motion does not mean they

fall within the savings clause.




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      Because Jones failed to show that § 2255’s remedy is “inadequate or

ineffective” to test the legality of his detention, the savings clause does not apply to

his claims. Accordingly, the district court properly dismissed Jones’s § 2241

petition. For this reason, there is also no merit to Jones’s argument that the district

court was required by Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992), to resolve his

claims on the merits.

      AFFIRMED.




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