           Case: 12-13514    Date Filed: 12/29/2014   Page: 1 of 9


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-13514
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 5:09-cv-00387-EAK-TBS



IAN ORVILLE AIKEN,
                                                           Petitioner-Appellant,


                                   versus


WARDEN, FCC COLEMAN - MEDIUM,
                                                          Respondent-Appellee.

                      ________________________

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

                            (December 29, 2014)

Before WILSON, ROSENBAUM and KRAVITCH, Circuit Judges.

PER CURIAM:
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       Ian Orville Aiken, a federal prisoner proceeding pro se, appeals the district

court’s dismissal of his petition for a writ of habeas corpus, pursuant to 28 U.S.C.

§ 2241, in which he alleged that his sentence for possession of ammunition by a

convicted felon was improperly enhanced pursuant to the Armed Career Criminal

Act (ACCA), 18 U.S.C. § 924(e). After a thorough review, we affirm.

                                                I.

       In 2000, Aiken was convicted and sentenced for possession of ammunition

as a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and possession and use

of a false non-immigrant visa and/or passport, in violation of 18 U.S.C. § 1546(a).

Because he had three prior violent felony convictions, 1 he was subject to the

sentence enhancement provision of the ACCA, which mandated a minimum 15-

year prison term. At sentencing, Aiken initially objected to the application of the

ACCA enhancement and to the factual descriptions in the presentence

investigation report (PSI) concerning the conduct underlying his prior state

convictions. But Aiken later withdrew his objections after the government agreed

to modify the contested sections of the PSI. The district court applied the ACCA

enhancement without discussing the specific convictions that served as predicate

offenses. The court then sentenced Aiken to 293 months’ imprisonment for the

1
 The criminal history that formed the basis of Aiken’s ACCA enhancement included: (1) 1989
convictions for carrying a concealed firearm, battery on a law enforcement officer, and resisting
an officer with violence to his person; (2) a 1990 conviction for aggravated battery; and (3) 1993
convictions for robbery and false imprisonment.
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felon-in-possession conviction and a concurrent 120-month term for the false-

document conviction.2 Aiken’s convictions and total sentence were summarily

affirmed by this court on appeal. United States v. Aiken, 254 F.3d 74 (11th Cir.

2001) (table).

       In 2002, Aiken sought relief pursuant to 28 U.S.C. § 2255, arguing that the

police lacked probable cause to arrest him, he was actually innocent of the charged

violation of § 1546(a), and he was deprived of jail-time credit from a related

offense. The district court denied Aiken’s motion in 2003 and we declined to issue

a certificate of appealability in June 2004.

       Aiken filed his instant § 2241 petition in September 2009, arguing that he

was actually innocent of the ACCA enhancement because his prior state

convictions did not qualify as “violent felonies.” The district court dismissed

Aiken’s § 2241 petition for lack of jurisdiction, concluding that Aiken 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 petition. Alternatively,

the court noted that Aiken’s claim would fail on the merits because he possessed

the requisite number of predicate convictions to support the ACCA enhancement.

       In his instant appeal, Aiken characterizes the Supreme Court’s decisions in

Begay v. United States, 553 U.S. 137 (2008), Chambers v. United States, 555 U.S.

2
 Aiken also is serving a 420-month sentence for conspiracy to engage in racketeering, in
violation of 18 U.S.C. § 1962(d), to run concurrently to his other two sentences.
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122 (2009), and Johnson v. United States, 559 U.S. 133 (2010), as retroactive

decisions sufficient to trigger the savings clause of § 2255(e) and allow his § 2241

petition to be decided on the merits. Relying on these decisions, he argues that the

district court erred in finding that his prior state convictions for battery on a law

enforcement officer, robbery, and false imprisonment, were violent felonies for

purposes of the ACCA. As a result, he maintains, he is “[a]ctually, [f]actually, and

[l]egally” innocent of his status as an armed career criminal. 3

                                              II.

       We construe pro se pleadings liberally. See Tannenbaum v. United States,

148 F.3d 1262, 1263 (11th Cir. 1998). “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), petition for cert. filed, (U.S. April 8, 2014). Under § 2241(a) and (d), a

district court has the power to grant a writ of habeas corpus to a prisoner in custody

in that district. This power is limited, however, by § 2255(e), which states:

       An application for a writ of habeas corpus in behalf of a prisoner who
       is authorized to apply for relief by [a § 2255 motion], 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.


3
 Following briefing, Aiken’s appeal was held in abeyance pending our ruling in Bryant v.
Warden, FCC Coleman-Medium, 738 F.3d 1253 (11th Cir. 2013).
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28 U.S.C. § 2255(e). The applicability of § 2255(e)’s savings clause is a

threshold jurisdictional 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 Aiken, 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 our 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 sentences exceed the applicable

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

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).




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                                         III.

      In this case, Aiken fails to show that he can meet the requirements in Bryant.

First, he cannot show that this Circuit’s law foreclosed him from raising an

objection to the treatment of his convictions as violent felonies under the ACCA

during his direct appeal or initial § 2255 motion. No Eleventh Circuit precedent

squarely held that battery on a law enforcement officer, as defined in Fla. Stat. §§

784.03, 784.07, was a violent felony for ACCA purposes during Aiken’s direct

appeal and initial § 2255 proceedings. It was not until December 2005, in our

decision in United States v. Glover, 431 F.3d 744, 749 (11th Cir. 2005), that we

held that a conviction under §§ 784.03 and 784.07 constituted a crime of violence

under the elements clause of the career-offender guideline enhancement found at

U.S.S.G. § 4B1.1. See Gilbert, 640 F.3d at 1309 n.16 (noting that this court uses

the same analysis for determining whether a crime constitutes a “violent felony”

for the purposes of the ACCA enhancement as it does for a “crime of violence” as

defined under the § 4B1.1 career-offender provision).

      Aiken’s reliance on our decision in United States v. Llanos-Agostadero, 486

F.3d 1194, 1196-98 (11th Cir. 2007) also is unavailing, as it was decided in 2007,

and its holding that Florida battery on a pregnant woman constituted a “crime of

violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii) is inapplicable here. See United

States v. Contreras, 739 F.3d 592, 598 (11th Cir. 2014) (noting that § 2L1.2


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“defines ‘crime of violence’ very differently” than the ACCA defines “violent

felony,” such that cases interpreting the ACCA were “not applicable” in that

context).

       Aiken also fails to identify circuit precedent at the time of his direct appeal

and first § 2255 motion that squarely foreclosed his claim that his 1990 convictions

for robbery and false imprisonment did not qualify as predicate offenses under the

ACCA. 4 That said, with regard to Aiken’s robbery conviction, prior to the

conclusion of his § 2255 proceedings in June 2004, our caselaw treated Florida

robbery as a violent felony under the ACCA. See United States v. Wilkerson, 286

F.3d 1324, 1325 (11th Cir. 2002) (holding that “robbery clearly constitutes a

‘violent felony’ within the meaning of § 924(e)(2)(B)”). In any event, Aiken fails

to demonstrate that Wilkerson has been overturned by a retroactively applicable

Supreme Court decision. See Bryant, 738 F.3d at 1274.

       Aiken’s reliance on Begay, Chambers, and Johnson, to argue that his

robbery conviction did not qualify as a violent felony is misplaced. First, although

Begay instructed courts to apply the “purposeful, violent, and aggressive” test to

determine whether a given state offense qualifies as a violent felony, it did not

4
  Because Aiken’s 1990 false-imprisonment conviction arose out of the same incident as his
robbery conviction, only one of the two convictions could have served as a predicate ACCA
offense. See United States v. Canty, 570 F.3d 1251, 1255 (11th Cir. 2009) (explaining that “[i]n
order for ACCA enhancement to be proper, the defendant must have been convicted of three
violent felonies or serious drug crimes ‘committed on occasions different from one another.’”)
(citation omitted). Here, as Aiken failed to demonstrate that his robbery conviction no longer
qualifies as a violent felony, we have no need to address his false-imprisonment conviction.
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abrogate all of this court’s prior violent felony jurisprudence. Begay, 553 U.S. at

144-45; Williams, 713 F.3d at 1347. Notably, subsequent to Begay, we reaffirmed

that Florida’s robbery statute, Fla. Stat. § 812.13(1), categorically qualifies as a

crime of violence for the purposes of the analogous career-offender enhancement.

See United States v. Lockley, 632 F.3d 1238, 1242-45 (11th Cir. 2011); Gilbert,

640 F.3d at 1309 n.16. Second, the Supreme Court’s holding in Chambers—that

Illinois’s offense of failure to report to a penal institution was not an ACCA violent

felony—did not affect Wilkerson’s treatment of Florida robbery as an ACCA

violent felony. See Chambers, 555 U.S. at 123, 127-30. Third, Johnson, which

held that one subdivision of Florida’s battery statute did not qualify as a violent

felony, also did not affect Wilkerson’s discussion of a robbery offense. See

Johnson, 559 U.S. at 136-37, 140-41, 145.

       To the extent that Aiken argues that his counsel was ineffective for

withdrawing his objections to the application of the ACCA enhancement at

sentencing, we need not address this issue because Aiken failed to present it to the

district court. See Walker v. Jones, 10 F.3d 1569, 1572-73 (11th Cir. 1994) (noting

that this court will not consider a habeas claim that was not raised before the

district court).

       In sum, we conclude that Aiken has failed to establish on appeal that binding

circuit precedent “squarely foreclosed” him from raising his claim on direct appeal


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or in his previous § 2255 motion, or that a retroactively applicable Supreme Court

decision overturned the relevant precedent. Bryant, 738 F.3d at 1274.

Accordingly, Aiken has not satisfied the § 2255(e) savings clause requirements and

we affirm the district court’s dismissal of his § 2241 habeas corpus petition. 5

       AFFIRMED.




5
  Following briefing, Aiken moved to remand the case in full, pursuant to Fed. R. App. P. 28(j),
arguing that the Supreme Court’s decision in Descamps v. United States, 570 U.S. ___, 133 S.Ct.
2276 (2013), established that the district court improperly referred to the facts underlying his
prior convictions in determining that they qualified as ACCA violent felonies. Because
Descamps has no bearing on whether Aiken can satisfy the test we set forth in Bryant, his motion
to remand the case in full is DENIED.
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