              Case: 18-11177     Date Filed: 08/14/2018    Page: 1 of 7


                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 18-11177
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 1:18-cv-00509-LMM


JERMAINE PADGETT,

                                                               Petitioner - Appellant,

                                        versus

WARDEN, USP ATLANTA,

                                                              Respondent - Appellee.

                           ________________________

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

                                 (August 14, 2018)

Before TJOFLAT, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM:

      Jermaine Padgett, a federal prisoner proceeding pro se, appeals from the

district court’s dismissal of his 28 U.S.C. § 2241 petition arguing that his then-
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mandatory life and “de-facto life” sentences violate the Eighth Amendment

because they were imposed for a course of conduct that began when he was a

juvenile. Padgett claims that the district court had jurisdiction over his § 2241

petition because it falls under the “saving” clause in 28 U.S.C. § 2255(e). He also

argues that the district court should have granted his request to transfer his petition

to the Western District of North Carolina, the court in which he was sentenced.

After careful review, we affirm the district court’s dismissal of Padgett’s petition.

                                  I. STANDARDS

      We review de novo whether a prisoner may bring a § 2241 petition under the

saving clause of § 2255(e). McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc.,

851 F.3d 1076, 1081 (11th Cir. 2017) (en banc), cert denied sub nom. McCarthan

v. Collins, 138 S. Ct. 502 (2017). We review the district court’s denial of a motion

for change of venue under 28 U.S.C. § 1404(a) for an abuse of discretion. England

v. ITT Thompson Indus., Inc., 856 F.2d 1518, 1520 (11th Cir. 1988); see also

Brown v. Conn. Gen. Life Ins. Co., 934 F.2d 1193, 1197 (11th Cir. 1991) (“Absent

a clear abuse of discretion, an appellate court will not reverse a court’s decision to

transfer a case.”).

                                II. BACKGROUND

      In 1994, Padgett was convicted of a number of federal crimes in the Western

District of North Carolina. He was sentenced to life imprisonment for several


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counts, as well as concurrent twenty-year sentences for two counts, a consecutive

five-year sentence for one count, and consecutive twenty-year sentences for three

counts. Padgett appealed, and the Fourth Circuit affirmed. In 2005, Padgett filed a

§ 2255 motion to vacate his sentence in the Western District of North Carolina.

The district court dismissed the motion as time-barred, and the Fourth Circuit

dismissed Padgett’s appeal. See United States v. Padgett, 186 F. App’x 335, 335–

36 (4th Cir. 2006) (per curiam) (unpublished).

      Several years later, the Supreme Court decided Graham v. Florida, 560 U.S.

48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), holding that the Eighth Amendment

prohibits the imposition of a life without parole sentence on a juvenile offender for

a nonhomicide crime, id. at 74–75, 130 S. Ct. at 2030, and Miller v. Alabama, 567

U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), holding that the Eighth

Amendment prohibits the imposition of a mandatory life without parole sentence

on any juvenile offender, id. at 465, 132 S. Ct. at 2460. Padgett filed the present

§ 2241 petition on February 1, 2018. He argues that his sentence is unlawful after

Graham and Miller because he was effectively sentenced to life imprisonment for

conduct that began when he was seventeen. The magistrate judge recommended

dismissing Padgett’s § 2241 petition for lack of jurisdiction. Padgett failed to

object to that recommendation, and the district court adopted it.




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      On appeal, Padgett argues that the district court possessed jurisdiction to

consider his petition under the saving clause in 28 U.S.C. § 2255(e) because, prior

to the Supreme Court’s intervening decisions in Graham and Miller his claim was

foreclosed by controlling precedent. Padgett also argues that the district court

abused its discretion by denying his request to construe his § 2241 petition as a

petition for a writ of error coram nobis in order to transfer it to the Western District

of North Carolina, the court in which he was convicted and sentenced.

                                 III. DISCUSSION

      Under § 2255, a federal prisoner who seeks to collaterally challenge his

sentence “may move the court which imposed the sentence to vacate, set aside or

correct the sentence.” 28 U.S.C. § 2255(a). A § 2255 motion is the exclusive

mechanism by which a federal prisoner may seek collateral relief unless he can

satisfy the saving clause at the end of § 2255(e):

             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.

Id. § 2255(e) (emphasis added); McCarthan, 851 F.3d at 1081. The applicability of

the saving clause is a threshold jurisdictional issue. Brown v. Warden, FCC

Coleman-Low, 817 F.3d 1278, 1283 (11th Cir. 2016). Thus, a district court does
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not possess jurisdiction to consider a § 2241 habeas petition filed by a federal

prisoner unless “the remedy by [§ 2255] motion is inadequate or ineffective to test

the legality of his detention.” 28 U.S.C. § 2255(e). It is the petitioner’s burden to

establish that § 2255 did not provide an adequate or effective remedy. McCarthan,

851 F.3d at 1081.

      Even if a § 2241 petition falls under § 2255(e)’s saving clause, the § 2241

petition must be filed in the “district wherein the restraint complained of is had.”

28 U.S.C. § 2241(a). In other words, jurisdiction over a § 2241 habeas petition

challenging present confinement “lies in only one district: the district of

confinement.” Rumsfeld v. Padilla, 542 U.S. 426, 442–43, 124 S. Ct. 2711, 2722,

159 L. Ed. 2d 513 (2004). Regarding Padgett’s request to transfer his § 2241

petition, “[f]or the convenience of parties and witnesses, in the interest of justice, a

district court may transfer any civil action to any other district or division where it

might have been brought or to any district or division to which all parties have

consented.” 28 U.S.C. § 1404(a).

      Finally, federal courts have authority to issue a writ of error coram nobis

under the All Writs Act. United States v. Mills, 221 F.3d 1201, 1203 (11th Cir.

2000); see also 28 U.S.C. § 1651(a). “A writ of error coram nobis is a remedy

available to vacate a conviction when the petitioner has served his sentence and is

no longer in custody, as is required for post-conviction relief under 28 U.S.C.


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§ 2255.” United States v. Peter, 310 F.3d 709, 712 (11th Cir. 2002) (per curiam).

Coram nobis relief is unavailable to a person who is still in custody. United States

v. Garcia, 181 F.3d 1274, 1274 (11th Cir. 1999) (per curiam).

       Even assuming arguendo that Padgett’s failure to object to the magistrate

judge’s report (“R&R”) recommending dismissal of his petition is not fatal to his

claims on appeal, the district court committed no error in dismissing his petition.1

Padgett’s claim that his § 2241 petition was authorized under § 2255(e)’s saving

clause due to intervening changes in controlling precedent is foreclosed by our

decision in McCarthan. In McCarthan, we held that a federal prisoner’s § 2241

petition did not satisfy § 2255(e)’s saving clause even though intervening Supreme

Court decisions overturned controlling precedent that previously foreclosed his

claims: “Even if a prisoner’s claim fails under circuit precedent, a motion to vacate

remains an adequate and effective remedy for a prisoner to raise the claim and

attempt to persuade the court to change its precedent, and failing that, to seek

certiorari in the Supreme Court.” McCarthan, 851 F.3d at 1099. “We are bound to

follow a prior precedent or en banc holding, except where that holding has been


       1
         Generally, a party who fails to object to a magistrate judge’s findings or
recommendations contained in an R&R “waives the right to challenge on appeal the district
court’s order based on unobjected-to factual and legal conclusions if the party was informed of
the time period for objecting and the consequences on appeal for failing to object.” 11th Cir. R.
3-1. But we reserve the right to review any waived challenge on appeal for plain error if
necessary in the interests of justice. Id. Here, there is some question regarding whether Padgett
was adequately warned of the consequences for failing to object to the R&R. Thus, we assume
arguendo that Padgett has not waived his arguments on appeal.
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overruled or undermined to the point of abrogation by a subsequent en banc or

Supreme Court decision.” Tobinick v. Novella, 884 F.3d 1110, 1118 (11th Cir.

2018) (quoting Chambers v. Thompson, 150 F.3d 1324, 1326 (11th Cir. 1998)).

      Additionally, the district court did not abuse its discretion by denying

Padgett’s motion to transfer his § 2241 petition to the Western District of North

Carolina or by failing to construe his petition as a petition for writ of error coram

nobis. Padgett is currently confined in Georgia. Thus, the Western District of North

Carolina is not a district in which his § 2241 petition “might have been brought”

under § 1404(a). And Padgett is not eligible for coram nobis relief because he is

presently incarcerated under the challenged sentences. See Garcia, 181 F.3d at

1274. Thus, the district court did not abuse its discretion by refusing to construe his

§ 2241 petition as a writ for error coram nobis in order to transfer the petition. For

all of these reasons, we affirm the district court’s dismissal of Padgett’s petition.

      AFFIRMED.




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