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                                                         [DO NOT PUBLISH]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
                      ________________________

                              (May 4, 2016)

                     ON REMAND FROM THE
                 UNITED STATES SUPREME COURT

Before HULL, WILSON and ROSENBAUM, 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). On December 29, 2014, this Court affirmed the

district court’s dismissal of Aiken’s § 2241 petition. Aiken v. Warden, FCC

Coleman – Medium, 595 F. App’x 953 (11th Cir. 2014) (unpublished).

      On June 30, 2015, the U.S. Supreme Court granted Aiken’s petition for a

writ of certiorari, vacated this Court’s December 29, 2014 decision, and remanded

the case for further consideration in light of Johnson v. United States, 576

U.S. ___, 135 S. Ct. 2551 (2015). Aiken v. Pastrana, 135 S. Ct. 2940 (2015). On

October 9, 2015, this Court ordered supplemental briefs from the parties

addressing the impact, if any, of Johnson on this appeal.

      After reviewing the supplemental briefs, we conclude that Johnson has no

impact on the outcome of this appeal, and we therefore reinstate our prior decision,

as provided below, and affirm the district court’s dismissal of Aiken’s § 2241

petition. We add at the end why Johnson does not allow Aiken, under the facts of

his case, to “open the portal” to the 28 U.S.C. § 2255(e) savings clause.




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                                REINSTATED DECISION

       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 district court then sentenced Aiken to 293 months’ imprisonment for

the 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).

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.
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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      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 this Court 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 district 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.

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


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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

                                               I.

       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), cert. denied, 135 S. Ct. 52 (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.

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


3
  Following briefing, Aiken’s appeal was held in abeyance pending this Court’s ruling in Bryant
v. Warden, FCC Coleman-Medium, 738 F.3d 1253 (11th Cir. 2013).
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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 sentence exceeds the applicable

statutory maximum penalty; 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).

                                         II.

      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


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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 this Court’s 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 “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


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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

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, this Court

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.

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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2011); see also 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, this Court 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, this Court concludes, as it did before, that Aiken has failed to

establish on appeal that binding circuit precedent “squarely foreclosed” him from

raising his claim on direct appeal or in his previous § 2255 motion, or that Begay,

Chambers, and Johnson are retroactively applicable Supreme Court decisions that




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

has not satisfied the § 2255(e) savings clause requirements. 5

                                  Johnson v. United States

       We now address the U.S. Supreme Court’s decision in Johnson v. United

States, 576 U.S. ___, 135 S. Ct. 2551.

       In Johnson, the Supreme Court invalidated the residual clause of the ACCA,

holding that it was unconstitutionally vague. 576 U.S. at ___, 135 S. Ct. at 584.

As a result, a prior conviction that qualified as an ACCA “violent felony” under

the residual clause can no longer be counted against a defendant, unless the

conviction alternatively meets the definition of “violent felony” laid out in the

ACCA’s elements clause or enumerated offenses clause. Aiken argued, during

supplemental briefing, that as a result of Johnson, he no longer has three qualifying

ACCA-predicate convictions.

       Aiken, however, still fails to meet step one of the Bryant test. Aiken was

never barred from arguing during his sentencing, direct appeal, or § 2255

proceeding that he was not an armed career criminal because the residual clause

was unconstitutionally vague. See Bryant, 738 F.3d at 1274. The Supreme Court


5
  Following the original briefing, Aiken moved in this Court to remand his 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 set
forth in Bryant, his motion to remand the case in full is DENIED.
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did not uphold the constitutionality of the residual clause until 2007, years after

Aiken’s § 2255 proceeding concluded. See James v. United States, 550 U.S. 192

(2007), overruled by Johnson, 576 U.S. ___, 135 S. Ct. 2551. This Court did not

reject a void-for-vagueness argument until even after that date. See United States

v. Gandy, 710 F.3d 1234, 1239 (11th Cir. 2013).6 Therefore, had Aiken raised a

vagueness challenge during his criminal case or in his § 2255 motion, this Court

would not have been “unwilling to listen to his claim.” Williams, 713 F.3d at

1347; see Bryant, 738 F.3d at 1273, 1275.

       Aiken argues that, because this Court had already held that certain offenses

were “violent felonies” under the residual clause by the time of his sentencing,

pursuant to the prior-panel-precedent rule, this Court would not have been able to

consider a constitutional challenge to the ACCA. While it is true that “a prior

panel precedent cannot be circumvented or ignored on the basis of arguments not

made to or considered by the prior panel,” In re Lambrix, 776 F.3d 789, 794 (11th

Cir. 2015) (quotation marks omitted), this Court has never held that the previous

application of a statute would bar a later facial constitutional challenge.




6
 In 2011, this Court rejected an argument that the definition of “crime of violence” in the
Sentencing Guidelines was vague and that a district court committed a due process violation by
applying the career offender enhancement. See United States v. Lockley, 632 F.3d 1238, 1241
n.2 (11th Cir. 2011). Whether this case or Gandy establishes the point at which a residual clause
void-for-vagueness argument was foreclosed by circuit precedent is immaterial, as both cases
occurred after Aiken’s § 2255 proceeding concluded.
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      For example, in United States v. Ruggiero, 791 F.3d 1281, 1290-91 (11th

Cir. 2015), this Court examined whether 18 U.S.C. § 2251(a), prohibiting the

production of child pornography, was unconstitutionally vague, despite the fact

that this Court had previously affirmed defendants’ convictions for violating

§ 2251(a), see, e.g., United States v. Bailey, 778 F.3d 1198 (11th Cir. 2015),

United States v. Mathis, 767 F.3d 1264 (11th Cir. 2014).

      Put simply, Aiken failed to show that throughout his sentencing, direct

appeal, and first § 2255 proceeding, this Court’s binding precedent squarely

foreclosed the new claim he asserts in his § 2241 petition—namely, that the

residual clause’s unconstitutionality disqualifies him from receiving the ACCA

enhancement. See Bryant, 738 F.3d at 1273-74. As Aiken cannot access the

savings clause, we must affirm the district court’s dismissal of Aiken’s § 2241

petition for lack of subject-matter jurisdiction.

      AFFIRMED.




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