                    Case: 12-11358         Date Filed: 10/02/2012   Page: 1 of 7

                                                                       [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-11358
                                        Non-Argument Calendar
                                      ________________________

                            D.C. Docket No. 5:11-cv-00218-WTH-KRS



STANLEY MCCRAY,

lllllllllllllllllllllllllllllllllllllll                             Petitioner - Appellant,

                                                 versus

WARDEN, FCC COLEMAN - LOW,

llllllllllllllllllllllllllllllllllllllll                            Respondent - Appellee.

                                     ________________________

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

                                           (October 2, 2012)

Before TJOFLAT, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:

         Stanley McCray, proceeding pro se, appeals from a district court order
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denying his motions, filed under Federal Rules of Civil Procedure 59 and 60(b),

for relief from a judgment dismissing his 28 U.S.C. § 2241 petition for a writ of

habeas corpus. After review, we affirm.

                                                I.

       McCray is serving a 188-month sentence for possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1). He filed a motion to vacate

his sentence under 28 U.S.C. § 2255, which the district court denied in 2008

without issuing a certificate of appealability (COA). This court dismissed

McCray’s appeal from that order as untimely.

       Then, in April 2011, he filed a § 2241 petition seeking relief from his

sentence under the savings clause of § 2255(e),1 arguing that the district court

erred in sentencing him under the enhanced penalty provisions of the Armed

Career Criminal Act (ACCA), 18 U.S.C. § 924(e). He contended that he was

actually innocent of the ACCA enhancement because one of the prior convictions

the district court considered to be a violent felony, a conviction for aggravated

assault, was actually a misdemeanor. He asserted that, under the Supreme Court’s




       1
        This section permits a prisoner to petition for relief under § 2241 if a § 2255 motion is
“inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e).

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decision in United States v. O’Brien, 130 S. Ct. 2169 (2010),2 his designation as

an armed career criminal was a separate offense from his underlying firearm-

possession offense and, accordingly, required proof of three violent felony

convictions beyond a reasonable doubt.

       On June 9, 2011, the district court dismissed McCray’s petition,

emphasizing that he was not entitled to relief under O’Brien because he had not

shown that O’Brien was retroactively applicable to his case. See Wofford v. Scott,

177 F.3d 1236, 1244 (11th Cir. 1999) (“The savings clause of § 2255 applies to a

claim when: 1) that claim is based upon a retroactively applicable Supreme Court

decision; 2) the holding of that Supreme Court decision establishes the petitioner

was convicted for a nonexistent offense; and 3) circuit law squarely foreclosed

such a claim at the time it otherwise should have been raised in the petitioner’s

trial, appeal, or first § 2255 motion.”). But see Gilbert v. United States, 640 F.3d

1293, 1319 (11th Cir. 2011) (en banc) (“The actual holding of the Wofford

decision . . . is simply that the savings clause does not cover sentence claims that

could have been raised in earlier proceedings.”), cert. denied, 132 S. Ct. 1001



       2
          In O’Brien, the Supreme Court held that the machine-gun provision of 18 U.S.C.
§ 924(c) — which imposes a 30-year mandatory minimum sentence for a defendant who uses,
carries, or possesses a machine gun — is an element of the offense (rather than a sentencing
factor) and must be proven beyond a reasonable doubt. 130 S. Ct. at 2174-75, 2178.

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(2012).

       McCray did not appeal from a final judgment of that order, which was

entered on the same day. Instead, on July 18, 2011, McCray filed motions for

relief from judgment under Rules 59 and 60(b). He asserted that his § 2241

petition was based not on O’Brien, but on United States v. Johnson, 130 S. Ct.

1265 (2010), which he argued applied retroactively to his case. The district court

denied McCray’s motions, and this is his appeal of that denial.3

                                              II.

       We review for an abuse of discretion the district court’s denial of a Rule

59(e) motion to alter or amend a judgment. Mincey v. Head, 206 F.3d 1106, 1137

(11th Cir. 2000). An abuse of discretion occurs “if the judge fails to apply the

proper legal standard or to follow proper procedures in making the determination,

or . . . [makes] findings of fact that are clearly erroneous.” Id. at 1137 n.69

(alterations in original) (internal quotation marks omitted).

       A petitioner must file a Rule 59(e) motion “no later than 28 days after the

entry of the judgment.” Fed. R. Civ. P. 59(e). “A court must not extend the time

to act under” Rule 59(e). Fed. R. Civ. P. 6(b)(2). Here, the district court entered


       3
        McCray also appealed the district court’s June 9, 2011 order and judgment denying his §
2241 petition. On May 30, 2012, this court dismissed McCray’s appeal from that order as
untimely.

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judgment denying McCray’s § 2241 petition on June 9, 2011. McCray filed his

Rule 59(e) motion 39 days later, on July 18. His motion was therefore untimely.

Based on Rule 6(b)(2)’s mandate, the district court did not abuse its discretion in

denying McCray’s motion.

                                          III.

      We also review for an abuse of discretion the district court’s denial of relief

under Rule 60(b). Jackson v. Crosby, 437 F.3d 1290, 1295 (11th Cir. 2006). A

petitioner may obtain relief from a judgment due to: (1) “mistake, inadvertence,

surprise, or excusable neglect”; (2) “newly discovered evidence that, with

reasonable diligence, could not have been discovered in time to move for a new

trial”; (3) “fraud . . . , misrepresentation, or misconduct by an opposing party”; (4)

a void judgment; (5) a judgment that has been satisfied, released, discharged,

reversed, or vacated; or (6) “any other reason that justifies relief.” Fed. R. Civ. P.

60(b). Only the last of these could plausibly apply to McCray’s claims. “[R]elief

under this clause is an extraordinary remedy which may be invoked only upon a

showing of exceptional circumstances.” Griffin v. Swim-Tech Corp., 722 F.2d

677, 680 (11th Cir. 1984).

      We conclude that the district court did not abuse its discretion in denying

McCray’s Rule 60(b) motion. To the extent McCray continues to argue that he is

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entitled to relief under O’Brien, we disagree. O’Brien is factually and legally

inapposite: it concerned only the machine-gun provision in 18 U.S.C. § 924(c)

and did not address the ACCA at all. 130 S. Ct. at 2178. The district court

accordingly did not abuse its discretion in declining to retroactively apply

O’Brien’s reasoning.

      The district court also did not abuse its discretion in finding that Johnson

did not provide McCray a basis for relief. In Johnson, the Supreme Court held

that the Florida felony battery offense, which did not have as an element the use of

physical force against another, did not necessarily constitute a violent felony for

purposes of the ACCA. 130 S. Ct. at 1269-72. McCray does not argue that his

felony offense is not a violent felony; rather, he asserts, without any support, that

his Florida aggravated assault offense was only a misdemeanor. Johnson, which

does not concern aggravated assault or address the distinction between felonies

and misdemeanors, does not apply to McCray’s case. Therefore, because it is not

based upon Johnson, even assuming McCray’s unsupported assertion that his

aggravated assault conviction is for a misdemeanor only, that claim could and

should have been raised earlier. It therefore does not open the door to relief under

§ 2255(e)’s savings clause. Gilbert, 640 F.3d at 1319.

      Lastly, McCray argues for the first time on appeal that the district court

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impermissibly relied upon arrest records to determine that his convictions were

violent felonies under the ACCA. He cites Shepard v. United States, 544 U.S. 13,

26 (2005), in which the Supreme Court held that a sentencing court cannot look to

police reports in determining whether a prior conviction qualifies as a violent

felony. But McCray never advanced this argument in his initial § 2255 motion or

in his subsequent § 2241 petition (brought under the § 2255(e) savings clause),

even though the Supreme Court decided Shepard before he filed both. Because

“the savings clause [of § 2255] does not cover sentence claims that could have

been raised in earlier proceedings,” such as McCray’s initial § 2255 motion,

McCray’s argument based on Shepard was improper. Gilbert, 640 F.3d at 1319.

We therefore decline to address it for the first time on appeal.

      Because McCray has not established that the district court abused its

discretion in denying his Rule 59 and 60(b) motions, we affirm.

      AFFIRMED.




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