           Case: 14-12896   Date Filed: 02/02/2015   Page: 1 of 9


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-12896
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:13-cv-01790-WSD


CLEVELAND HANKERSON,

                                                          Petitioner-Appellant,

                                  versus

WARDEN,
UNITED STATES PENITENTIARY,
Atlanta, Georgia,

                                                         Respondent-Appellee.

                       ________________________

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

                            (February 2, 2015)

Before JORDAN, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 14-12896     Date Filed: 02/02/2015   Page: 2 of 9


      Cleveland Hankerson, a federal prisoner proceeding pro se, appeals the

district court’s dismissal of his 28 U.S.C. § 2241 habeas corpus petition as

successive under 28 U.S.C. § 2244(a). In his instant petition, Hankerson again

relied on Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490

(2008), to argue that he should not have had his sentence enhanced as a career

offender under U.S.S.G. § 4B1.1 because his prior conviction for aggravated

battery did not constitute a violent felony. As background, in dismissing an earlier

§ 2241 habeas petition, the district court had adjudicated on the merits Hankerson’s

claim that, under Begay, his prior conviction for driving under the influence

(“DUI”) did not constitute a violent felony for purposes of the career-offender

enhancement under § 4B1.1. In its order dismissing that earlier petition, the

district court had reasoned that (1) the petition was untimely because Hankerson

had filed it more than a year after the Supreme Court had decided Begay; (2) he

could not satisfy the requirement of Wofford v. Scott, 177 F.3d 1236 (11th Cir.

1999), of demonstrating that he was convicted of a nonexistent offense; (3) he had

not received a sentence in excess of the statutory maximum, such that, under

Gilbert v. United States, 640 F.3d 1293 (11th Cir. 2011) (en banc), the “savings

clause” of 28 U.S.C. § 2255(e) did not apply to his sentencing claim; and (4) his

claim of “actual innocence” of the career-offender enhancement failed because he




                                          2
              Case: 14-12896     Date Filed: 02/02/2015    Page: 3 of 9


did not allege that he was factually innocent of his offenses of conviction, and the

actual-innocence exception did not apply to claims of guidelines error.

      On appeal, Hankerson argues the merits of his claim that he is “actually

innocent” of his career-offender enhancement because his prior conviction for

aggravated battery did not constitute a violent felony. Nevertheless, he provides

no argument in response to the district court’s dismissal of his § 2241 petition as

successive under § 2244(a).

      Upon a thorough review of the record, and after consideration of

Hankerson’s brief, we affirm.

      We review de novo the availability of habeas relief under 28 U.S.C. § 2241.

Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328, 1333 (11th Cir. 2013).

Pro se pleadings are liberally construed. Tannenbaum v. United States, 148 F.3d

1262, 1263 (11th Cir. 1998).

      Under § 2241, a district court has the power to grant a writ of habeas corpus

to a prisoner in custody in that district. 28 U.S.C. § 2241(a), (d). Under § 2244(a),

      No circuit or district judge shall be required to entertain an application
      for a writ of habeas corpus to inquire into the detention of a person
      pursuant to a judgment of a court of the United States if it appears that
      the legality of such detention has been determined by a judge or court
      of the United States on a prior application for a writ of habeas corpus,
      except as provided in section 2255.

28 U.S.C. § 2244(a). In Antonelli v. Warden, we held that a district court erred in

dismissing a petitioner’s second § 2241 petition for the petitioner’s failure to
                                           3
              Case: 14-12896     Date Filed: 02/02/2015    Page: 4 of 9


obtain our permission to file a second or successive petition for habeas corpus

relief, as § 2241 petitions are not subject to our “gatekeeping” function as § 2255

motions are. 542 F.3d 1348, 1350, 1352 (11th Cir. 2008). Nevertheless, we

affirmed the district court’s alternative dismissal of the petition under § 2244(a)

upon its finding that the claims in the second petition were “successive.” Id.

at 1352. We concluded that, because the claims raised in the second § 2241

petition previously had been adjudicated on the merits in the first § 2241 petition,

the second § 2241 petition was successive, and the district court properly dismissed

it under § 2244(a). Id.

      Under the Sentencing Guidelines,

      A defendant is a career offender if (1) the defendant was at least
      eighteen years old at the time the defendant committed the instant
      offense of conviction; (2) the instant offense of conviction is a felony
      that is either a crime of violence or a controlled substance offense; and
      (3) the defendant has at least two prior felony convictions of either a
      crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a).

      The term “crime of violence” means any offense under federal or state
      law, punishable by imprisonment for a term exceeding one year,
      that—

             (1)    has as an element the use, attempted use, or threatened
                    use of physical force against the person of another, or

             (2)    is burglary of a dwelling, arson, or extortion, involves
                    use of explosives, or otherwise involves conduct that
                    presents a serious potential risk of physical injury to
                    another.
                                          4
              Case: 14-12896     Date Filed: 02/02/2015    Page: 5 of 9




U.S.S.G. § 4B1.2(a). We have explained that this definition of a “crime of

violence” is “substantially the same” as the definition of a “violent felony” in the

Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B). United States v.

Chitwood, 676 F.3d 971, 975 n.2 (11th Cir. 2012).

      In Begay, the Supreme Court considered whether a New Mexico DUI

conviction constituted a “violent felony” under the ACCA. 553 U.S. at 139-40,

128 S.Ct. at 1583-84. The Supreme Court interpreted the enumerated list of

burglary, arson, extortion, and the use of explosives as having a limiting effect on

the residual clause, “or otherwise involves conduct that presents a serious potential

risk of physical injury to another.” Id. at 141-43, 128 S.Ct. at 1584-85. The Court

then concluded that the residual clause did not cover all crimes that involved a

“serious 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 the

enumerated list of crimes. Id. at 142, 128 S.Ct. at 1584-85 (citation omitted). The

Court also noted that all of the ACCA’s enumerated crimes “typically involve

purposeful, violent, and aggressive conduct.” Id. at 144-45, 128 S.Ct. at 1586

(quotation marks omitted). By contrast, New Mexico’s DUI statute did not involve

such conduct, and, thus, did not qualify as a “violent felony” under

§ 924(e)(2)(B)(ii). Id. at 145-48, 128 S.Ct. at 1586-88.



                                          5
              Case: 14-12896      Date Filed: 02/02/2015    Page: 6 of 9


      A one-year statute of limitations applies to the filing of habeas corpus

petitions and motions to vacate. 28 U.S.C. §§ 2244(d)(1), 2255(f). The limitation

period runs from the date on which (1) the judgment of conviction became final;

(2) an unconstitutional impediment to filing was removed; (3) a new retroactively

applicable right was initially recognized by the Supreme Court; or (4) facts

supporting new claims could have been discovered through the exercise of due

diligence, whichever date is latest. 28 U.S.C. §§ 2244(d)(1), 2255(f). The

one-year statute of limitations applies to § 2241 habeas petitions. See Peoples v.

Chatman, 393 F.3d 1352, 1353 (11th Cir. 2004) (holding that a state prisoner’s

§ 2241 habeas petition was subject to the one-year statute of limitations in

§ 2244(d)(1)); Medberry v. Crosby, 351 F.3d 1049, 1058-62 (11th Cir. 2003)

(holding that there was a single habeas corpus remedy for state prisoners governed

by both § 2241 and 28 U.S.C. § 2254, and that, thus, the habeas corpus remedy

authorized by § 2241 was subject to the restrictions of § 2254).

      The district court’s power to grant a writ of habeas corpus under § 2241 is

limited by the “savings clause” of § 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.



                                           6
              Case: 14-12896     Date Filed: 02/02/2015    Page: 7 of 9


28 U.S.C. § 2255(e). When a prisoner previously has 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. §§ 2244(b), 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, 640 F.3d at 1307-08. In Wofford, we stated that a petitioner meets the

requirements of the savings clause when: (1) the petitioner’s claim is based on a

retroactively applicable Supreme Court decision; (2) the holding of that Supreme

Court decision establishes that the petitioner was convicted of a nonexistent

offense; and (3) circuit law squarely foreclosed such a claim at the time it

otherwise should have been raised at the petitioner’s trial, appeal, or first § 2255

motion. 177 F.3d at 1244.

      In Gilbert, we held that the savings clause of § 2255(e) “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.” 640 F.3d

at 1323. We initially noted that the text of the savings clause does not indicate that

it authorizes the filing of a § 2241 petition to remedy a guidelines miscalculation

that can no longer be raised in a § 2255 motion. Id. at 1307. Furthermore, the bar

on filing a successive § 2255 motion could not render that section “inadequate or


                                           7
               Case: 14-12896     Date Filed: 02/02/2015    Page: 8 of 9


ineffective” to test the legality of a prisoner’s detention, or otherwise “the savings

clause would eviscerate” the statutory bar on successive motions to vacate. Id.

at 1308. We emphasized that one of the principle purposes of the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”) was to ensure a greater

degree of finality for convictions, and that permitting prisoners to use the savings

clause to assert guidelines-based attacks after the denial of a first § 2255 motion

would wreak havoc on the finality interests that Congress sought to protect by

imposing a statutory bar on successive motions. Id. at 1310-11. We also rejected

Gilbert’s argument that he was “actually innocent” of being a career offender

because “[a] defendant who is convicted and then has the § 4B1.1 career offender

enhancement, or any other guidelines enhancement, applied in the calculation of

his sentence has not been convicted of being guilty of the enhancement. If

guidelines enhancements were crimes, they would have to be charged in the

indictment and proven to the jury beyond a reasonable doubt.” Id. at 1320. See

also Spencer v. United States, __ F.3d __, 2014 WL 6234529 (11th Cir. Nov. 14,

2014) (en banc) (holding that a Begay claim is not cognizable in a § 2255 motion

unless the sentence exceeds the statutory maximum).

      The district court did not err in dismissing Hankerson’s instant § 2241

petition as successive under § 2244(a). The district court adjudicated the merits of

his Begay argument in his first § 2241 petition. While he now relies on Begay to


                                           8
              Case: 14-12896     Date Filed: 02/02/2015    Page: 9 of 9


challenge a separate prior conviction for aggravated battery instead of the prior

DUI conviction he sought to challenge in his initial § 2241 petition, the district

court’s reasoning for rejecting his reliance on Begay—timeliness and failure to

satisfy the requirements of Wofford and Gilbert—was not limited to his challenge

to his DUI conviction and would apply equally to his current challenge to his

aggravated-battery conviction. Thus, because the district court previously

adjudicated his Begay claim on the merits in his first § 2241 petition, his second

§ 2241 petition again raising Begay as the basis for challenging his career-offender

sentence was successive, and the district court properly dismissed it under

§ 2244(a).

      AFFIRMED.




                                          9
