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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

LAWRENCE JAMES TAYLOR,

Petitioner,

v. CASE NO. 5:10-cv-214-RH-GRJ

PAIGE AUGUSTINE,

Respondent.

_____________________________/

REPORT AND RECOMMENDATION

Petitioner, an inmate in federal custody proceeding pro se, initiated this case by

filing Doc. 1, a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. 

Petitioner raises one claim: that his prior convictions for burglary should not have been

considered crimes of violence, and he therefore should not have been sentenced as a

career criminal under the Armed Career Criminal Act (“ACCA”). Respondent has filed a

response to the petition, and Petitioner has filed a reply. (Docs. 17, 19.) For the

following reasons, the undersigned recommends that the petition should be denied.

Background

On July 28, 2006, in the Northern District of Texas, Petitioner pled guilty to one

count of being a felon in possession of firearms in violation of 18 U.S.C §§ 922(g)(1)

and 924(e)(1). See United States v. Taylor, Case No. 4:06-cr-95-A-1. The

presentence report (“PSR”) found that Petitioner qualified as an armed career criminal

under ACCA, because he had two prior burglary convictions, a conviction for

possession of cocaine, and a conviction for injury to a child. The PSR classified the
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burglary convictions and injury to a child conviction as crimes of violence for ACCA

purposes.

On November 17, 2006, the district court found that Petitioner had three

qualifying prior offenses of crimes of violence, and sentenced Petitioner to 260 months

in prison and four years of supervised release. Judgment was entered on November

21, 2006. (Id., Doc. 42.) Petitioner appealed his sentence, arguing that he should not

have received the ACCA enhancement because the Shepard-approved documents

consulted by the district court did not prove that the two burglary offenses occurred on

different dates. Petitioner did not argue that the burglary convictions should not be

considered crimes of violence. The Fifth Circuit rejected this argument – and other

arguments not relevant to the instant petition – and affirmed Petitioner’s sentence on

February 20, 2008. (Id., Doc. 54.) Petitioner applied for a writ of certiorari from the

Supreme Court, but certiorari was denied.

On June 1, 2009, Petitioner filed a motion to vacate pursuant to 28 U.S.C

§ 2255. (Case No. 4:09-cv-314-A, Doc. 1.) In his § 2255 petition, Petitioner argued for

the first time that neither his prior burglary convictions nor his prior conviction for injury

to a child should have been considered crimes of violence for ACCA purposes. With

respect to the burglary convictions, Petitioner asserted that he had been indicted for

burglary of a habitation – a crime of violence – but had pled to burglary of a building,

which he argued was not a crime of violence under United States v. Constante, 544

F.3d 584 (5 Cir. 2008). Petitioner argued that the district court improperly relied on the th

PSR’s description of the burglary offenses in determining that those convictions were

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crimes of violence, in violation of Shepard v. United States, 544 U.S. 13 (2005). 

Petitioner also asserted that his conviction for injury to a child should not be considered

a crime of violence under James v. United States, 550 U.S. 192 (2007), and Begay v.

United States, 533 U.S. 137 (2008).

The Texas district court denied Petitioner’s § 2255 petition on June 26, 2009.

(Case No. 4:09-cv-314-A, Doc. 3.) The Court stated that Petitioner “provides no

explanation for why he has raised these claims for the first time in his present motion

aside from stating generally that none of them were raised previously due to ineffective

counsel.” Id. at 2. Finding that Petitioner “failed to allege the required elements to

overcome his procedural default,” the court denied the petition. Id. Petitioner appealed

the denial to the Fifth Circuit, “wholly focus[ing] on the issue whether he should be

resentenced without the ACC classification because United States v. Constante, 544

F.3d 584, 585-86 (5 Cir. 2008), shows that two of the three convictions upon which his th

ACC designations rests are not violent felony convictions as that term is used in

§ 924(e).” (Case No. 4:09-cv-314-A, Doc. 12, at 2.) Petitioner argued that his claim

was “not procedurally defaulted because it arises under caselaw that was issued after

his direct appeal was adjudicated and thus could not have been raised in that appeal.” 

Id. The Fifth Circuit denied a certificate of appealability, finding that Petitioner’s

argument “does not suffice to show that jurists of reason could debate the propriety fo

the district court’s procedural ruling with respect to his Constante-based claim.” Id.

Following the denial of his § 2255 petition, Petitioner filed a “motion to correct an

illegal sentence,” raising the same claims that he raised in the original habeas petition. 

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(Case No. 4:10-cv-194-A, Doc. 1.) The District Court for the Northern district of Texas

denied the motion on March 24, 2010, on the grounds that it was a successive § 2255

habeas petition that had been filed without authorization of the circuit court.

The instant motion has been filed under 28 U.S.C. § 2241, and asserts one

ground for relief: that Petitioner’s prior convictions for burglary should not be considered

crimes of violence for ACCA purposes, and that Petitioner is therefore “actually

innocent” of being an armed career criminal. Petitioner argues that the instant petition

should be considered on the merits because it falls within the “savings clause” of

§ 2255(e).

Discussion

Under the circumstances presented, Petitioner is precluded by § 2255 from

pursuing any remedies under § 2241. Section 2255 states that an application such as

this “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 denied him relief[.]”

Here, the District Court for the Northern District of Texas denied Petitioner’s habeas

petition under § 2255 based on Petitioner’s procedural default of the claims presented,

and the Fifth Circuit affirmed that determination. 

Under limited circumstances, a Petitioner may avoid the preclusive effect of that

prohibition by invoking the “savings clause” in § 2255(e) which permits relief to be

sought under § 2241 if it “appears that the remedy by motion [under § 2255] is

inadequate or ineffective to test the legality of [the applicant’s] detention.” “The burden

of demonstrating the inadequacy or ineffectiveness of the § 2255 remedy rests squarely

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on the petitioner.” Turner v. Warden Coleman CI (Medium), 709 F.3d 1328, 1333 (11th

Cir. 2013) (citing McGhee v. Hanberry, 604 F.2d 9, 10 (5 Cir. 1979)). th

The Eleventh Circuit several times recently has addressed the application of the

savings clause to circumstances such as this – where the petitioner has filed a petition

under § 2255 and subsequently seeks habeas relief under § 2241 – clarifying the

showing that a petitioner must make to demonstrate that the § 2255 was inadequate or

ineffective. Because of these recent changes in the law governing the application of

the savings clause to overcome the bar on second or successive § 2255 petitions, a

discussion of this precedent is necessary. 

The first major case to reexamine the savings clause was Gilbert v. United

States, 640 F.3d 1293, 1306 (11 Cir. 2011). The Eleventh Circuit addressed the

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following issue: “Does the savings clause of § 2255(e) apply to claims that the

sentencing guidelines were misapplied in the pre-Booker mandatory guidelines era in a

way that resulted in a substantially longer sentence that does not exceed the statutory

maximum?” The petitioner in Gilbert had been classified as a career offender under the

sentencing guidelines, at a time when the guidelines were mandatory. After his direct

appeal and § 2255 petitions were denied, new Supreme Court and circuit law

determined that Gilbert’s predicate offense – carrying a concealed firearm – was no

longer considered a crime of violence. See Begay, 553 U.S. at 137; United States v.

Petitioner relies on Gilbert v. United States, 609 F.3d 1159 (11 Cir. 2010). In

1 th

the first Gilbert case, a panel of the Eleventh Circuit granted habeas relief to the

petitioner. However, that decision was subsequently vacated and the case was reheard by the en banc court, which affirmed the district court’s denial of relief. 

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Archer, 531 F.3d 1347, 1352 (11 Cir. 2008). The Eleventh Circuit assumed for the

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sake of argument that if Gilbert were to be resentenced, he would receive a shorter

sentence, but noted that the original sentence was not “in excess of the statutory

maximum for his crimes,” which was life imprisonment. Gilbert, 640 F.3d at 1306. 

Relying on the need for finality in postconviction proceedings – and noting that

every other circuit to examine the savings clause in this context had come to the same

conclusion – the Gilbert court held that “the savings clause does not apply to

sentencing claims, at least not to those where the sentence imposed was within the

statutory maximum.” Id. at 1315. The Court specifically noted that its holding would not

apply to “pure Begay errors, by which we mean errors in the application of the ‘violent

felony’ enhancement, as defined in 18 U.S.C. § 924(e)(2)(B).” Id. at 1319 n.20. Pure

Begay errors, unlike the error at issue in Gilbert, would result in a sentence that was

longer than the statutory maximum. The Court also noted that a prior decision, Wofford

v. Scott, 177 F.3d 1236 (1999), contained dicta that the savings clause may well apply

to pure Begay errors. It is, of course, a Begay error that is at issue in the instant case.

In Hardy v. United States, 443 F. App’x 489 (11 Cir. 2011), the Eleventh Circuit th

examined in an unpublished opinion a case in which the petitioner had been denied

§ 2255 relief, and subsequently filed a Rule 60(b) motion. Hardy, like Gilbert, had been

considered a career offender under the sentencing guidelines, in part based on his prior

conviction for carrying a concealed weapon. Following the Supreme Court and

Eleventh Circuit opinions in Begay and Archer, Hardy attempted to challenge his

sentence again. The circuit court noted that “in Gilbert, with facts strikingly similar to

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the current case, [the court held that] the savings clause of § 2255(e) does not permit a

prisoner to bring a claim in a § 2241 petition that the Federal Sentencing Guidelines

have been misapplied in determining his sentence if that claim is unavailable because

of § 2255(h)’s bar on second or successive § 2255 motions.” Id. at 492 (citing Gilbert,

640 F.3d at 1322-23). Accordingly, the Eleventh Circuit affirmed the district court’s

denial of the petitioner’s motion.

In McKinney v. Warden, FCC Coleman–Medium, 870 F. Supp. 2d 1351 (M.D.

Fla. 2012) the Middle District of Florida had an opportunity to examine the issue left

open by Gilbert – whether the savings clause would apply to a “pure Begay error,”

where the alleged error would result in a sentence that was higher than the statutory

maximum in the absence of the error. In McKinney, which presented consolidated

appeals from two defendants, both petitioners argued that they should not have been

considered armed career criminals under ACCA, because a prior felony conviction was

not in fact a “crime of violence” for ACCA purposes. McKinney, like Gilbert, had a prior

conviction for possession of a concealed weapon. He argued, like Gilbert, that the

Begay and Archer cases – which were decided after his first § 2255 petition was

denied – entitled him to relief under § 2241. The government conceded that the

savings clause should apply to these “pure Begay errors,” and asserted that the

petitioners were entitled to relief. The district court, noting that the government’s

concession did not bind the court, applied the reasoning of Gilbert to these “pure Begay

errors” and concluded that there was no

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difference in principle between the case of an offender who receives an

enhanced sentence that is both automatic and mandatory under ACCA

and the case of an offender who receives an enhanced sentence for the

same reason under the Guidelines. . . . Moreover, insofar as policy

interests are concerned relative to the finality of sentencing judgments,

the two cases are utterly indistinguishable. 

Id. at 1358. The district court concluded that if “there is a difference of legal

significance between the cases of Ezell Gilbert on the one hand, and those of Sedrick

McKinney and Toddrick Williams on the other, I do not envy the lawyer who will have to

explain that difference to Gilbert who watches from inside the compound at Coleman

while McKinney and Williams go free.” Id. at 1359. In determining that the reasoning of

Gilbert applied equally to pure Begay errors, the district court denied the petitions on

the grounds that the savings clause did not permit the petitioners to overcome the bar

on second or successive habeas petitions.

A few months later, a pure Begay issue reached the Eleventh Circuit, but the

court “again sidestep[ped] the issue,” finding that it “need not dip a toe in that boiling

cauldron.” Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328 1335 (11 Cir. th

2013). In Turner, the petitioner presented a Begay error in his § 2241 petition, arguing

that after his original § 2255 petition was denied, intervening Supreme Court and circuit

caselaw resulted in the convictions underlying his ACCA classification no longer being

considered violent felonies. In other words, Turner presented the precise question left

open in Gilbert and addressed by the district court in McKinney – would the savings

clause permit opening of the § 2241 door under such circumstances? The Turner court

was able to “sidestep” that issue, however, because it found that even assuming that

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Turner could open the § 2241 door, Turner had at least three qualifying offenses to

justify his ACCA status. Id. at 1342. The court concluded that “[p]erhaps the day will

come when a petitioner makes a showing of pure Begay error sufficient to render the

question left open by Gilbert ripe for decision. That day, however, is not today.” Id.

As it happened, the day for addressing that question came only two months later,

in Williams v. Warden, Federal Bureau of Prisons, ___ F.3d ___, No. 11-13306, 2013

WL 1482283 (11 Cir. Apr. 11, 2013). Williams, like McKinney and like Petitioner in the th

instant case, was sentenced as an armed career criminal under ACCA. Without the

ACCA enhancement, the statutory maximum sentence for his crime would have been

ten years. Accordingly, Williams’ claim was a “pure Begay error.” Williams argued in a

first § 2255 motion that his prior burglary convictions should not have been considered

crimes of violence, and then filed two Rule 60(b) motions and a § 2241 petition

asserting that his sentence violated the Supreme Court’s decisions in Shepard, 544

U.S. 13 (2005) and Taylor v. United States, 495 U.S. 575 (1990). After the Supreme

Court decided Begay in 2008, Williams filed a second § 2255 motion asserting again

that his burglary offenses were not violent felonies. After that petition was denied,

Williams filed a § 2241 petition, arguing that his claims should be heard on the merits

pursuant to the savings clause. While the government initially conceded, as it had in

McKinney, that the savings clause permitted Williams’ claims to be heard, it argued in

court-ordered supplemental briefing that the savings clause would not apply. The

Eleventh Circuit agreed, and affirmed the district court’s denial of habeas relief.

The threshold question before the circuit court in Williams was “whether the

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savings clause is a jurisdictional provision.” Williams, 2013 WL 1482283, at *5. The

court held that “the savings clause does indeed impose a subject-matter jurisdictional

limit on § 2241 petitions,” based on the language in § 2255(e) “which speaks in

imperative terms of what class of cases the district court has the power to hear, not

what the petitioner himself must allege or prove in order to state a claim.” Id. The court

then turned to the question of “whether Williams has demonstrated that his claim is the

kind of claim covered by the savings clause’s limited grant of jurisdiction;” in other

words, whether Williams had been able to show that the § 2255 remedy was

“inadequate or ineffective” to present his claim. Id. at *8. 

The Williams court observed first that 

the saving clause cannot simply mean that every § 2255 motion that

appears to have been incorrectly decided based on subsequent Supreme

Court precedent may be revisited through a § 2241 habeas petition; if it

did, then the bar on second or successive petitions would effectively be

written out of the statute, and the savings clause would swallow up the

specific allowance for a second motion when the basis of the challenge is

“a new rule of constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously unavailable.” See 28

U.S.C. § 2255(h)(2).Yet by the same token, the circumstances delineated

in § 2255(h)(1) and (2) cannot be the only instances in which the § 2255

remedy is inadequate.

Id. at *9. Citing Wofford v. Scott, 177 F.3d 1236 (1999), the Williams court found that

there were two necessary (but not necessarily sufficient) conditions for a sentencing

claim to be heard through the portal of the savings clause: 

First, the claim must be based upon a retroactively applicable Supreme

Court decision. The second, and equally essential, condition is that the

Supreme Court decision must have overturned a circuit precedent that

squarely resolved the claim so that the petitioner had no genuine

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opportunity to raise it at trial, on appeal, or in his first § 2255 motion. 

Id. at *10.

Applying these principles to Williams’ claims, the court found that Williams was

not entitled to relief because he had failed to show that there was circuit precedent that

“squarely held” that his prior burglary conviction was a violent felony for ACCA

purposes. Id. In other words, there was no circuit precedent that “foreclosed his

argument and rendered his § 2255 motion an ineffective test of his claims.” Id. at *11. 

The court also rejected Williams’ argument that Begay was a “circuit-law busting,

retroactively applicable Supreme Court decision” that would open the § 2241 portal

through the savings clause. Id. at 12. The court clarified the test for “evaluat[ing]

whether Begay was ‘circuit-law busting’ in the savings clause context,” stating that 

we must find that Begay “overturned circuit precedent” specifically

addressing the claim Williams now asserts – namely, that Fla. Stat. §

810.02 is not a violent felony for ACCA purposes. The reason the panel

in Wofford imposed this requirement is that, if an issue had not been

decided against a petitioner’s position by prior precedent at the time of his

first § 2255 motion, then that motion would have been an adequate

procedure for testing his claim. . . . In this case, there was no adverse

precedent at the time of Williams’ § 2255 motion that would have made us

unwilling to listen to his claim.

Id. (internal citations omitted). The court found that the “most that Williams can

demonstrate” is that when he filed his first § 2255 motion, the claim may have been

incorrectly decided, but found 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 still again in light of novel Supreme Court

precedent. Williams has to show that the test was not procedurally

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adequate because erroneous circuit precedent foreclosed his argument.

Id. Williams could not show that his § 2255 motion was inadequate to test his claim

that his burglary conviction was not a qualifying predicate offense under ACCA,

because he did raise that exact claim in his § 2255. The circuit court concluded:

In short, Williams had an adequate and reasonable opportunity to

test the legality of his detention both on direct appeal and in his first §

2255 motion, and he took that opportunity. While his claim that his Florida

burglary convictions could not qualify as ACCA violent felonies was novel

at the time of his first § 2255 petition, it was not foreclosed by our

precedent. Thus, we conclude that he cannot now raise that claim once

again in a § 2241 petition. The district court lacked subject-matter

jurisdiction to entertain the matter.

Id. at 15.

It follows that Petitioner’s claims in this case are foreclosed by Williams. 

Petitioner – like the petitioner in Williams – filed a § 2255 motion asserting that his prior

burglary conviction should not have been considered a crime of violence for ACCA

purposes. Petitioner asserted that he had not raised these claims in his direct appeal

because Begay and Constante were decided after this direct appeal and before his §

2255. Petitioner’s § 2255 motion was denied, and the Fifth Circuit affirmed the denial. 

Like the petitioner in Williams, Petitioner then filed a “motion to correct an illegal

sentence” raising the same claims, before finally raising the claim in a motion under §

2241.

For the Court to have subject matter jurisdiction over Petitioner’s claims by way

of the savings clause, Petitioner must establish that his claims are based on

retroactively applicable Supreme Court precedent that “overturned a circuit precedent

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that squarely resolved the claim so that the petitioner had no genuine opportunity to

raise it at trial, on appeal, or in his first § 2255 motion.” Id. at *10. Petitioner has not

made the required showing. Specifically, he has failed to establish that circuit

precedent – either in the Fifth Circuit, where his original criminal case and first § 2255

motion were heard, or in the Eleventh Circuit – squarely held that the subsection of the

Texas burglary statute under which he was convicted was a crime of violence for ACCA

purposes, such that the claim that he now raises was foreclosed. Nor has he pointed to

a Supreme Court case that directly overturned such adverse precedent. Accordingly,

Petitioner has not shown that his original § 2255 motion was an inadequate or

ineffective test of his claims. As in Williams, Petitioner “had an adequate and

reasonable opportunity to test the legality of his detention . . . in his first § 2255 motion,

and he took that opportunity.” Id. at *15. 

Because Petitioner has not met his burden of demonstrating that the § 2255

remedy was inadequate or ineffective, and has not shown that he is entitled to invoke

the savings clause of § 2255(e), the undersigned concludes that the instant petition

should be denied.

In light of the foregoing, it is respectfully RECOMMENDED that the petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2241, Doc. 1, be DENIED.

IN CHAMBERS this 6 day of May 2013. 

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s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

 

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NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written objections to the

proposed findings and recommendations within 14 days after being served with a copy of this report

and recommendation. A party may respond to another party’s objections within 14 days after being

served with a copy thereof. Failure to file specific objections limits the scope of review of proposed

factual findings and recommendations.

Case No. 5:10-cv-214-RH-GRJ