           Case: 12-11993    Date Filed: 01/22/2013       Page: 1 of 13




                                                                [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 12-11993
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 2:10-cv-00184-LGW-JEG



TERRY N. TAYLOR,

                               llllllllllllllllllllllllllllllllllllllllPetitioner-Appellant,

                                     versus

WARDEN,
UNITED STATES OF AMERICA,

                            llllllllllllllllllllllllllllllllllllllllRespondents-Appellees.

                      ________________________

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

                             (January 22, 2013)

Before TJOFLAT, PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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       Terry Taylor, a pro se federal prisoner, appeals the denial by the United

States District Court for the Southern District of Georgia of his 28 U.S.C. § 2241

federal habeas corpus petition.1 On appeal, Taylor argues that his sentence was

improperly enhanced under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.

§ 924(e), thus resulting in a 300 month sentence. Without the enhancement, he

was subject to a ten-year statutory maximum for possession of a firearm by a

convicted felon. He argues that he is actually innocent of the ACCA enhancement

because, pursuant to the recent Supreme Court decisions in Begay v. United States,

553 U.S. 137, 128 S. Ct. 1581, 170 L. Ed. 2d 490 (2008), and Johnson v. United

States, 559 U.S.       , 130 S. Ct. 1265, 176 L. Ed. 2d 1 (2010), his Illinois

conviction for theft from a person no longer qualifies as a violent felony. We

conclude that Taylor has not shown under § 2255 that he is entitled to bring a §

2241 petition and therefore affirm the district court’s ruling.

       The availability of habeas relief under § 2241 presents a question of law that

we review de novo. Cook v. Wiley, 208 F.3d 1314, 1317 (11th Cir. 2000).

Typically, collateral attacks on the validity of a federal sentence are brought under

       1
               Taylor’s § 2241 petition is an attempt to circumvent the restrictions in 28 U.S.C.
§ 2255(h) on successive petitions under 28 U.S.C. § 2255. The instant § 2241 petition was filed
in the Southern District of Georgia (the district of his confinement), but he is challenging his
2005 sentence in the Northern District of Illinois. Taylor’s direct appeal to the Seventh Circuit
was unsuccessful, as were his subsequent § 2255 petitions.

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28 U.S.C. § 2255. Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir. 2003), cert.

denied, 124 S. Ct. 258 (2003). A provision of § 2255, however, permits a federal

prisoner, under very limited circumstances, to challenge the legality of his

detention by filing a habeas petition pursuant to § 2241. See 28 U.S.C. §§ 2241(a),

2255(e). That provision, known as the “savings clause,” provides that:

      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.

28 U.S.C. § 2255(e). Accordingly, a court may entertain a § 2241 petition if the

petitioner establishes that the remedy provided for under § 2255 is “inadequate or

ineffective to test the legality of his detention.” Sawyer, 326 F.3d at 1365.

      When a prisoner has previously filed a § 2255 motion to vacate, he must

apply for and receive permission from the court of appeals before filing a

successive § 2255 motion. 28 U.S.C. § 2255(h). Such restrictions on successive §

2255 motions, standing alone, do not render that section 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). Rather, a

petitioner’s claim might meet the requirements of the savings clause only if: “(1)

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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.” Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999). A

prisoner must satisfy all three prongs of this test before the Wofford threshold is

met.

        In an en banc decision, we recently addressed the issue of whether the

§ 2255(e) savings clause permitted a federal prisoner to challenge his sentence, as

opposed to his conviction, in a § 2241 petition when the § 2255(h) bar against

successive § 2255 motions prevented him from raising that sentencing claim.

Gilbert, 640 F.3d 1293. We held that the § 2255(e) savings clause “does not

authorize a federal prisoner to bring in a § 2241 petition a claim, which would

otherwise be barred by § 2255(h), that the sentencing guidelines were misapplied

in a way that resulted in a longer sentence not exceeding the statutory maximum.”

Id. at 1323. However, we specifically declined to address whether the § 2255(e)

savings clause would authorize a federal prisoner to bring a § 2241 petition if a

sentencing error resulted in a sentence that exceeded the statutory maximum. Id. at

1306.

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      The statutory maximum sentence for a conviction for possession of a

firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), is ten years’

imprisonment. 18 U.S.C. § 924(a)(2). However, the ACCA authorizes an enhanced

penalty, with a mandatory minimum sentence of 15 years’ imprisonment, for a

defendant who violates § 922(g) and who “has three previous convictions” for “a

violent felony.” Id. § 924(e)(1). The ACCA enhancement resulted in Taylor’s

receiving a 300-month sentence.

      The ACCA defines the term “violent felony” as “any crime punishable by

imprisonment for a term exceeding one year” that “(I) has as an element the use,

attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise

involves conduct that presents a serious potential risk of physical injury to

another.” Id. § 924(e)(2)(B). The first clause of § 924(e)(2)(B) is known as the

“elements clause”; the second half of the second clause is known as the “residual

clause.”

      In assessing whether a prior conviction qualifies as a violent felony for

purposes of the ACCA, we generally apply a “categorical approach,” looking no

further than the statutory definition of the offense and the judgment of conviction.

United States v. Palomino Garcia, 606 F.3d 1317, 1336 (11th Cir. 2010). When

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the statute is ambiguous–covering conduct that constitutes a violent felony, as well

as conduct that does not–we may employ a “modified categorical approach” and

examine the facts underlying the conviction, but we do so only in order to

determine the statutory basis for the conviction. Id. at 1336-37. In doing so, we

may consult “any charging documents, the written plea agreement, the transcript

of the plea colloquy, and any explicit factual finding by the trial judge to which the

defendant assented.” Id. at 1337.

       At Taylor’s July 29, 2005, sentencing hearing for his conviction of

possession of a firearm by a felon, the United States District Court for the

Northern District of Illinois reviewed Taylor’s prior felony convictions for

eligibility for enhancement under the ACCA. The district court determined that

Taylor’s 1989 conviction for theft from a person was a violent felony under §

924(e)(2)(B)(ii).2 The district court relied on the Seventh Circuit’s holding in



       2
               The Illinois theft statute under which Taylor was convicted provided that:
               A person commits theft when he knowingly: (a) Obtains or exerts unauthorized
               control over property of the owner; ... and (1) Intends to deprive the owner
               permanently of the use or benefit of the property; ... (e) Sentence.... (4) Theft of
               property from the person not exceeding $300 ... is a Class 3 felony.
38 ILL. COMP. STAT. ANN. § 16-1 (West 1988). In his brief, Taylor states that he was convicted
under the provision of the Illinois statute dealing with “theft of property, other than a firearm, not
from the person.” The information in Taylor’s theft case states that he “knowingly obtained
unauthorized control over property from the person of Christina Peterson” and the transcript of
his plea colloquy shows that he pleaded guilty to “the offense of theft as charged in the
information.”

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United States v. Howze, 343 F.3d 919 (7th Cir. 2003), where the court held that

theft from a person under Minnesota’s theft statute was a violent felony under §

924(e)(2)(B)(ii). The Howze court reasoned that theft from a person, like the

enumerated crime of burglary in § 924(e)(2)(B)(ii), “entail[s] a risk that violence

will erupt between the thief and the victim.” 343 F.3d at 923. The risk of violence

and injury posed by such confrontation was sufficient to bring theft from a person

“within the statutory definition” of a violent felony under the ACCA. Id. at 924.

      Taylor appealed his sentence to the Seventh Circuit, arguing that the district

court erred in not considering a statement filed by the State’s Attorney after he

pleaded guilty that described the acts underlying his conviction as nonviolent. The

Seventh Circuit affirmed Taylor’s sentence. United States v. Taylor, 179 F. App’x.

957 (7th Cir. 2006), cert. denied, 127 S. Ct. 311 (2006). The court held that the

State’s Attorney’s statement was outside the scope of documents that courts could,

per Shepard v. United States, consider in determining whether a crime was a

violent felony under the ACCA. Id. at 962. The court also held that the district

court had properly relied on Howze and that there was “no relevant distinction”

between the Minnesota provision at issue in Howze and Illinois’ theft from a

person provision. Id. at 961 n.2. Taylor then filed two petitions for relief under §

2255. The district court denied the first and dismissed the second for lack of

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jurisdiction.3

        In the years since the resolution of Taylor’s direct appeal, the Supreme

Court has issued several opinions analyzing whether a particular crime fell within

the ambit of the ACCA’s enhancement provision. See James v. United States, 550

U.S. 192, 127 S. Ct. 1586, 167 L. Ed. 2d 532 (2007); Begay v. United States, 553

U.S. 137, 128 S. Ct. 1581, 170 L. Ed. 2d 490 (2008); Chambers v. United States,

555 U.S. 122, 129 S. Ct. 687, 172 L. Ed. 2d 484 (2009); Johnson v. United States,

559 U.S.       , 130 S. Ct. 1265, 176 L. Ed. 2d 1 (2010); Sykes v. United States, 564

U.S. __, 131 S. Ct. 2267, 180 L. Ed. 2d 60 (2011). Taylor argues that the holdings

of two of these opinions, Johnson and Begay, declassify theft from a person as a

violent felony under the ACCA and that he was therefore sentenced to a term of

imprisonment beyond the statutory maximum.4 Taylor argues that he is entitled to



        3
                 Taylor’s first § 2255 petition raised claims of ineffective assistance of counsel.
His second § 2255 petition was filed as a motion pursuant to Fed. R. Civ. P. 60(b)(6), which the
district court construed as a § 2255 motion because it was its functional equivalent. That motion
challenged his sentence enhancement under Begay and Chambers v. United States, 555 U.S. 122
129 S. Ct. 687, 172 L. Ed. 2d 484 (2009). It was dismissed as an unauthorized successive
petition. Taylor’s § 2255 petitions were filed in the Northern District of Illinois, the district of his
conviction. His subsequent § 2241 petitions were filed in the Southern District of Georgia, the
district of his confinement.
        4
               Taylor’s solitary and conclusory statement that his conviction “does not meet the
elements test under the residual clause” in James does not sufficiently present the issue for
appellate review. Hamilton v. Southland Christian School, Inc., 680 F.3d 1316, 1319 (11th Cir.
2012) (“A passing reference to an issue in a brief is not enough, and the failure to make
arguments and cite authorities in support of an issue waives it.”).

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have his claim decided in a § 2241 petition because § 2255(e)’s savings clause

should apply to sentencing claims such as his, the question left open in Gilbert. He

further argues that he meets Wofford’s requirements for accessing the savings

clause because: 1) Johnson and Begay are retroactive decisions, 2) their holdings

establish that theft from a person is not a violent felony and he is therefore actually

innocent of the ACCA enhancement, and 3) Howze had previously squarely

foreclosed his claim.

      The government has conceded that the first and third prongs of Wofford are

met, so we need not address those. Nor must we decide the Gilbert question of

whether § 2255(e)’s savings clause applies to claims that a sentencing error

resulted in a sentence beyond the statutory maximum. Even if we were to allow

such sentencing claims, Taylor still could not satisfy Wofford’s second prong

because Johnson and Begay do not declassify theft from the person as a violent

felony.

      First, Johnson is not applicable to Taylor’s claim because it does not

implicate the ACCA’s residual clause, under which Taylor’s offense was deemed a

violent felony. In Johnson the Supreme Court held that the Florida felony offense

of battery was not a violent felony under the ACCA’s elements clause,

§ 924(e)(2)(B)(I). Johnson, 559 U.S. at __, __, 130 S. Ct. at 1268, 1274. The

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Court reasoned that, “in the context of a statutory definition of ‘violent felony,’ the

phrase ‘physical force’ means violent force—that is, force capable of causing

physical pain or injury to another person.” Id. at __, 130 S. Ct. at 1271. Because

the felony offense of battery in Florida encompassed “any intentional physical

contact, ‘no matter how slight,’” the Court determined that the offense did not

entail the violent force necessary to fall under the ACCA’s elements clause. Id. at

__, 130 S. Ct. at 1270 (citation omitted). The Court did not consider whether the

offense qualified as a violent felony under the ACCA’s residual clause and

declined to remand the case for that issue to be considered. Id. at __, __, 130 S. Ct.

at 1272, 1274; see also United States v. Schneider, 681 F.3d 1273, 1282 (11th Cir.

2012) (noting that “Johnson did not construe the residual clause at all”); Rozier v.

United States, No. 11-13557, 2012 WL 5870123, at *1 (11th Cir. Nov. 21, 2012)

(noting that the Johnson Court “explicitly refused to decide whether that offense

was a crime of violence under the ACCA’s residual clause”).

      Though Begay does implicate the ACCA’s residual clause, the decision still

fails to assist Taylor. In Begay, the Court interpreted the list of enumerated crimes

in the first clause of § 924(e)(2)(B)(ii) as having a limiting effect on the second

clause of § 924(e)(2)(B)(ii). 553 U.S. at 141-43, 128 S. Ct. at 1584-85. The Court

concluded that the second clause did not cover all crimes that involved a “serious

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potential risk of physical injury to another,” but only those crimes that were

“roughly similar, in kind as well as in degree of risk posed” to burglary, arson,

extortion, or crimes involving the use of explosives. Id. at 142-43, 128 S. Ct. at

1585 (citation omitted). The Court explained that all of the ACCA’s enumerated

crimes “typically involve purposeful, violent, and aggressive conduct” and that

this type of conduct “is such that it makes more likely that an offender, later

possessing a gun, will use that gun deliberately to harm a victim.” Id. at 144-45,

128 S. Ct. at 1586 (quotations omitted). The Court distinguished “crimes

involving intentional or purposeful conduct (as in burglary and arson)” from strict

liability crimes such as the driving under the influence offense at issue in the case

before it. Id. at 146, 128 S. Ct. at 1587. “In both instances, the offender’s prior

crimes reveal a degree of callousness toward risk, but in the former instance they

also show an increased likelihood that the offender is the kind of person who

might deliberately point the gun and pull the trigger.” Id.

      Three years later the Court recalibrated its Begay analysis in Sykes v. United

States. The Court described Begay as “[t]he sole decision of this Court concerning

the reach of ACCA’s residual clause in which risk was not the dispositive factor.”

Sykes v. United States, 564 U.S. at __, 131 S. Ct. at 2275. The Court called the

“purposeful, violent, and aggressive” phrase an “addition to the statutory text” and

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explained that it had been used in the context of analyzing “a crime akin to strict

liability, negligence, and recklessness crimes.” Id. at __, 131 S. Ct. at 2275-76.

      This Court recently joined several other circuits in interpreting Sykes as

limiting the “purposeful, violent, and aggressive” test to offenses that are strict

liability, negligence, or recklessness crimes. United States v. Chitwood, 676 F.3d

971, 979 (11th Cir. 2012), cert. denied, 133 S. Ct. 288 (2012). Thus, after Sykes

and Chitwood, “[o]ffenses that are not strict liability, negligence, or recklessness

crimes qualify as crimes of violence under ... [the] residual clause if they

categorically pose a serious potential risk of physical injury that is similar to the

risk posed by one of the enumerated crimes. At least where the previous

conviction required knowing or intentional conduct, it is enough if that conviction

was for a crime that generally creates as much risk of physical injury as one of the

enumerated crimes.” Id. at 979 (citation omitted). This standard is not materially

different from that applied by the Seventh Circuit in Howze to theft from a person,

which is not a strict liability, negligence, or recklessness crime. See Howze, 343

F.3d at 924 (explaining that the risk of injury posed by theft from a person was “at

least as likely (in the aggregate) as injury from burglary”). For these reasons,

Begay, as interpreted by Sykes and Chitwood, creates no change in the governing

standard–the Howze standard–which was applied by the court which convicted

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and sentenced Taylor and the court which denied his direct appeal (i.e., the

Northern District of Illinois and the Seventh Circuit). In other words, Begay

simply does not apply to Taylor’s claim.

      In order to access relief under § 2241 via § 2255(e)’s savings clause, a

petitioner’s claim must “rest upon a circuit law-busting, retroactively applicable

Supreme Court decision.” Wofford, 177 F.3d at 1245. Johnson and Begay do

nothing to undermine the Seventh Circuit’s analysis in Howze–i.e., the analysis

applied at Taylor’s sentence and on his direct appeal–that theft from a person is a

violent felony under the ACCA. Therefore, § 2255(e)’s savings clause does not

apply to Taylor’s claim.

      AFFIRMED.




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