           Case: 14-11182   Date Filed: 01/29/2015   Page: 1 of 8


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-11182
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 5:12-cv-00307-WTH-PRL



JAMES ERIC JONES,

                                                          Petitioner-Appellant,

                                  versus

WARDEN, FCC COLEMAN - USP I,

                                                        Respondent-Appellee.

                      ________________________

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

                            (January 29, 2015)

Before MARCUS, WILLIAM PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
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       James Eric Jones, 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 corpus.

After a thorough review, we conclude that Jones has not shown his petition

satisfies the requirements of the savings clause of 28 U.S.C. § 2255(e), and we

therefore affirm.

                                               I.

       The procedural history of this case can be briefly summarized as follows: In

2007, Jones was convicted, after a jury trial, for being a felon in possession of a

firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and

924(e).1 Based on his prior criminal history, including South Carolina convictions

for strong-arm robbery, burglary, and attempted burglary, Jones was subject to an

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

§ 924(e). Although initially sentenced to 520 months’ imprisonment, the district

court later reduced Jones’s sentence to a 456-month term pursuant to

Fed.R.Crim.P. 35(a). His conviction and ACCA-enhanced sentence were affirmed

on direct appeal. United States v. Jones, 312 F. App’x 559, 560 (4th Cir. 2009)

(unpublished).



1
 Jones was convicted and sentenced in the U.S. District Court for the District of South Carolina,
but he is currently incarcerated at a federal penitentiary in Coleman, Florida. Thus, Jones
properly filed his instant § 2241 petition in the Middle District of Florida. See Rumsfeld v.
Padilla, 542 U.S. 426, 443-44 (2004) (noting that a § 2241 petition by a federal prisoner must be
brought in the district where the inmate is incarcerated).
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      In 2010, Jones filed a motion to vacate his sentence, pursuant to 28 U.S.C.

§ 2255, alleging multiple errors, including that he was denied effective assistance

of counsel because his attorney failed to challenge his burglary conviction at

sentencing. The district court denied his § 2255 motion and the Fourth Circuit

affirmed. See Jones v. United States, 419 F. App’x 365 (4th Cir. 2011)

(unpublished).

      In June 2012, Jones filed the instant § 2241 petition, arguing that, pursuant

to Sykes v. United States, 564 U.S. ___, 131 S.Ct. 2267 (2011), his two prior

convictions for burglary and attempted burglary no longer qualified as predicate

offenses for the ACCA enhancement. As such, Jones asserted that his 456-month

sentence, which exceeded the applicable 10-year statutory maximum under

§ 922(g)(1), violated due process and he was “actually innocent” of the ACCA

enhancement. He maintained that his § 2241 petition satisfied the requirements of

the savings clause because his claim had been previously foreclosed by then-

existing Fourth Circuit precedent. See United States v. Wright, 594 F.3d 259, 266

(4th Cir. 2010) (holding that second-degree burglary as defined by S.C. Code Ann.

§ 16-11-312(A) constituted a violent felony under the ACCA).

      The district court dismissed Jones’s § 2241 petition for lack of jurisdiction

because he had failed to establish the necessary conditions to satisfy the savings

clause of 28 U.S.C. § 2255(e), so that his claims might be considered in a § 2241


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petition. Specifically, the court found no merit to Jones’s argument that he was

entitled to relief because of “circuit busting precedent,” and Jones could, and did,

raise the same claims in his unsuccessful § 2255 motion. Jones then filed a motion

for reconsideration, reiterating many of his previous arguments, and also asserting

that his burglary conviction no longer qualified as a predicate offense under the

ACCA based on the Supreme Court’s holding in Descamps v. United States, 570

U.S. __, 133 S.Ct. 2276 (2013). The district court denied his motion for

reconsideration. The instant appeal followed.

                                          II.

      “Whether a prisoner may bring a [] § 2241 petition under the savings clause

of § 2255(e) is a question of law we review de novo.” Williams v. Warden, Fed.

Bureau of Prisons, 713 F.3d 1332, 1337 (11th Cir. 2013), cert. denied 135 S.Ct. 52

(2014). Typically, collateral attacks on the validity of a federal conviction or

sentence must be brought under 28 U.S.C. § 2255. Sawyer v. Holder, 326 F.3d

1363, 1365 (11th Cir. 2003). The “savings clause” of § 2255(e), however, permits

a federal prisoner, under very limited circumstances, to file a habeas petition

pursuant to § 2241. Id.

      Under the savings clause, a court may entertain a § 2241 petition attacking

custody resulting from a federally imposed sentence if the petitioner establishes

that the remedy provided for under § 2255 is “inadequate or ineffective to test the


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legality of his detention.” 28 U.S.C. § 2255(e). The applicability of § 2255(e)’s

savings clause is a threshold issue, which imposes a subject-matter jurisdictional

limit on § 2241 petitions. See Williams, 713 F.3d at 1337-38. Accordingly, before

we may reach the substantive claims raised by Jones, we must determine whether

the savings clause of § 2255(e) permits him to seek relief through a § 2241

petition.

         The restriction against second and successive § 2255 motions, standing

alone, cannot render § 2255’s remedy inadequate or ineffective under the savings

clause in § 2255(e). Gilbert v. United States, 640 F.3d 1293, 1308 (11th Cir. 2011)

(en banc). Rather, we have explained that a petitioner can use the savings clause to

“open the portal” to § 2241 only where he shows that: (1) throughout his

sentencing, direct appeal, and original § 2255 proceeding, his claim was squarely

foreclosed by binding precedent; (2) his current claim is based on a Supreme Court

decision that overturned the precedent that had foreclosed his claim; (3) that

Supreme Court decision is retroactively applicable on collateral review; (4) as a

result of the application of the new rule, his sentence exceeds the applicable

statutory maximum penalties; and (5) the savings clause reaches his pure-Begay2

error claim of illegal detention above the statutory maximum penalty. Bryant v.

Warden, FCC Coleman-Medium, 738 F.3d 1253, 1262, 1274 (11th Cir. 2013).


2
    Begay v. United States, 553 U.S. 137 (2008).
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                                          III.

      Here, we reject Jones’s claim that his sentence was erroneously enhanced

based on his prior convictions for burglary and attempted burglary or that the

district court erred in dismissing his § 2241 petition. As the record shows, Jones’s

petition fails to satisfy the first two elements of the Bryant test. First, Jones has

failed to show that binding Fourth Circuit precedent squarely foreclosed his

claim—that his prior convictions for burglary and attempted burglary under

§ 16-11-312(A) no longer qualify as violent felonies under the ACCA—during his

sentencing or direct appeal. The Fourth Circuit did not hold that a conviction

under § 16-11-312(A) constituted a violent felony under the ACCA until February

3, 2010, well after Jones’s sentencing in 2008 and direct appeal in 2009. See

Wright, 594 F.3d at 266. Although the Wright decision had come out by the time

Jones filed his § 2255 motion on February 18, 2010, he still had multiple

procedural opportunities, including at sentencing and on appeal, to assert his

§ 924(e) claim. In fact, Jones unsuccessfully argued in his direct appeal that his

prior convictions for burglary and attempted burglary did not qualify as ACCA

predicate offenses. Jones, 419 F. App’x at 365; see also Williams, 713 F.3d at

1348 (noting that “simply because a procedurally adequate test may get the answer

wrong . . . cannot mean that a petitioner is entitled to utilize the savings clause to

have his claim reevaluated”).


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       Jones argues that, prior to his indictment, the Fourth Circuit held that

burglary constituted a qualifying predicate offense under the ACCA. See United

States v. Bowden, 975 F.2d 1080, 1084-85 (4th Cir. 1992) (noting that a burglary

conviction under a North Carolina “breaking or entering” statute qualified as

“generic burglary” under the ACCA and justified a sentencing enhancement). But

Bowden addressed a North Carolina statute, not the South Carolina burglary statute

at issue in Jones’s case, and thus could not have squarely foreclosed Jones’s claim

throughout his sentencing, direct appeal, and first § 2255 proceeding.

       Next, Jones failed to identify a Supreme Court decision overturning any

precedent from the Fourth Circuit that purportedly squarely foreclosed his claim.

Because there was no binding precedent that foreclosed his § 924(e) argument

during his sentencing and direct appeal, it follows that no Supreme Court ruling

could have overturned precedent foreclosing his claim. As such, Jones’s reliance

on Sykes and Descamps is unavailing.

       In short, Jones has failed to satisfy the first two elements of the Bryant test,

and the remedy under § 2255 was not “inadequate or ineffective to test the legality

of his detention.” Bryant, 738 F.3d at 1274.3 Accordingly, we affirm the district

court’s dismissal of Jones’s § 2241 petition.


3
  Because Jones’s § 2241 petition does not fall within the savings clause of § 2255(e), we need
not address the issue of whether a district court within the Eleventh Circuit has the power to
reduce a sentence imposed by a district court within the Fourth Circuit.
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AFFIRMED.




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