[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 14-12896

Non-Argument Calendar

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

CLEVELAND HANKERSON, 

 Petitioner-Appellant,

versus

WARDEN, 

UNITED STATES PENITENTIARY,

Atlanta, Georgia,

 Respondent-Appellee.

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Appeal from the United States District Court

for the Northern District of Georgia

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(February 2, 2015)

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

PER CURIAM: 

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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 

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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 

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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.

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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.

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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.

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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 

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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 

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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.

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