              Case: 12-13281     Date Filed: 01/08/2015    Page: 1 of 6


                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-13281
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 5:10-cv-00237-WTH-TBS



DONNIE WAYNE NIPPER,

                                                                Petitioner-Appellant,

                                        versus

WARDEN, FCC COLEMAN – MEDIUM,

                                                               Respondent-Appellee.

                           ________________________

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

                                  (January 8, 2015)

Before HULL, MARTIN, and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Donnie Wayne Nipper, a federal prisoner proceeding pro se, appeals the

district court’s dismissal of his 28 U.S.C. § 2241 petition for a writ of habeas
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corpus. Nipper argues that the 195-month prison sentence imposed after he

pleaded guilty to possession of a firearm by a convicted felon, in violation of 18

U.S.C. § 922(g)(1), exceeds the maximum 120-month term authorized by

Congress. Specifically, he argues that because of several intervening U.S.

Supreme Court decisions, his prior convictions for common-law robbery and

“breaking or entering” did not qualify as predicate convictions supporting an

enhancement under the Armed Career Criminal Act (ACCA), 18 U.S.C.

§ 924(e)(1).1 Nipper further argues that the government may not support his

ACCA enhancement now by relying on prior convictions it did not rely upon at

sentencing. After careful review, and in light of our recent decision in Bryant v.

Warden, FCC Coleman – Medium, 738 F.3d 1253 (11th Cir. 2013), we affirm.

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

28 U.S.C. § 2255(e) “savings clause.” Bryant, 738 F.3d at 1262. “When a

conviction has become final, a federal prisoner usually may challenge the legality

of his detention only through a § 2255 motion [to vacate].” Id. at 1256. Once a

prisoner has filed a § 2255 motion, he must apply for and receive permission from

this Court before filing a successive § 2255 motion. See 28 U.S.C. § 2255(h);

Bryant, 738 F.3d at 1260. Here, Nipper unsuccessfully sought permission to file a
       1
         Under the ACCA, a defendant convicted under § 922(g) is subject to a mandatory
minimum 15-year prison sentence if he has 3 prior convictions for a violent felony or a serious
drug offense, or both, committed on occasions different from one another. 18 U.S.C.
§ 924(e)(1). A § 922(g) conviction otherwise carries a 10-year maximum prison term.
§ 924(a)(2).
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successive § 2255 motion in the Fourth Circuit.

      However, a prisoner may file a § 2241 petition if he shows that a § 2255

motion was “inadequate or ineffective to test the legality of his detention.” 28

U.S.C. § 2255(e); Bryant, 738 F.3d at 1256, 1262. Whether this provision—the

§ 2255(e) “savings clause”—may “open the portal” to a § 2241 petition is a

“jurisdictional question” that must be decided before addressing the merits of a

petitioner’s claims. Bryant, 738 F.3d at 1262. The restrictions on filing successive

§ 2255 motions do not alone render a § 2255 remedy inadequate or ineffective for

purposes of the “savings clause.” See id. at 1267.

      In Bryant, we held that to show that a prior § 2255 motion was inadequate or

ineffective, a petitioner asserting a sentencing error must establish that: (1) binding

circuit precedent squarely foreclosed the claim “throughout his sentencing, direct

appeal, and first § 2255 proceeding”; (2) “subsequent to his first § 2255

proceeding,” a U.S. Supreme Court decision overturned that circuit precedent;

(3) the rule announced in that decision applies retroactively on collateral review;

and (4) as a result of that new rule, the petitioner’s sentence exceeds the statutory

maximum authorized by Congress. 738 F.3d at 1274, 1281. The claims Nipper

raises in his § 2241 petition do not satisfy these jurisdictional requirements because

none of the U.S. Supreme Court cases on which he relies were decided

“subsequent to his first § 2255 proceeding,” id. at 1274, which concluded on


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October 29, 2010. See Carachuri-Rosendo v. Holder, 560 U.S. 563, 130 S. Ct.

2577 (decided June 14, 2010); Johnson v. United States, 559 U.S. 133, 130 S. Ct.

1265 (decided March 2, 2010); Hunter v. United States, 558 U.S. 1143, 130 S. Ct.

1135 (decided January 19, 2010), Watts v. United States, 558 U.S. 1143, 130 S. Ct.

1134 (same) 2; Chambers v. United States, 555 U.S. 122, 129 S. Ct. 687 (decided

January 13, 2009); Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (decided

April 16, 2008); cf. In re Hill, 113 F.3d 181, 182–84 (11th Cir. 1997) (concluding

that a new rule of law was not “previously unavailable” for purposes of a

successive 28 U.S.C. § 2254 habeas petition because the Supreme Court decision

forming the basis for the new rule was issued while the petitioner’s prior § 2254

proceedings were pending). Consequently, the district court lacked jurisdiction to

consider Nipper’s § 2241 petition.

       During this appeal, Nipper has filed several Notices of Supplemental

Authorities, in which he seeks to rely on cases decided since the conclusion of the

district court proceedings. The only Supreme Court case he cites is Descamps v.

United States, 570 U.S. ___, 133 S. Ct. 2276 (2013). There, the Court considered

whether a sentencing court may examine certain documents to determine whether a

prior conviction for a crime with a single, indivisible set of elements qualifies as a
       2
          Hunter and Watts do not satisfy the § 2255(e) savings clause for the additional reason
that neither case overruled circuit precedent. Both decisions consisted of a single sentence in
which the Supreme Court granted the petitions for certiorari and remanded the cases to this Court
in light of the position asserted in the government’s briefs. See Hunter, 558 U.S. 1143, 130 S.
Ct. 1135; Watts, 558 U.S. 1143, 130 S. Ct. 1134.
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“violent felony” under the ACCA’s enumerated-offenses provision,

§ 924(e)(2)(B). Descamps, 133 S. Ct. at 2281–83. The Court concluded that,

when faced with a prior conviction for violating an indivisible statute—i.e., one not

containing alternative elements—sentencing courts may apply only the

“categorical approach,” which requires comparing the elements of the statute

forming the basis of the prior conviction with the elements of the “generic” version

of that crime. See id. at 2283

      Nipper may not “open the portal” to a § 2241 petition based on Descamps.

Neither the Supreme Court nor this Court has held that Descamps applies

retroactively on collateral review. Beyond that, Descamps was decided in the

context of a direct appeal, and the Supreme Court has not since applied it to a case

on collateral review. See id. at 2282–83; cf. In re Anderson, 396 F.3d 1336, 1339

(11th Cir. 2005) (concluding that United States v. Booker, 543 U.S. 220, 125 S. Ct.

738 (2005), was not retroactively applicable in part because it was decided on

direct appeal and the Supreme Court had not applied it to a case on collateral

review).

      Finally, none of the remaining cases cited in Nipper’s Notices of

Supplemental Authorities contradict the fact that all of the Supreme Court cases on

which he relied in his § 2241 petition were decided well before the conclusion of

his § 2255 proceedings. For those reasons, we affirm the dismissal of Nipper’s


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§ 2241 petition.

      AFFIRMED.




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