Donnie Wayne Nipper v. Warden, FCC Coleman - Medium

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13281
Non-Argument Calendar
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D.C. Docket No. 5:10-cv-00237-WTH-TBS
DONNIE WAYNE NIPPER,
Petitioner-Appellant,
versus
WARDEN, FCC COLEMAN - MEDIUM,
Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 1, 2017)
ON REMAND FROM THE SUPREME COURT
OF THE UNITED STATES
Before HULL, MARTIN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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2
Donnie Wayne Nipper appeals the district court’s dismissal of his 28 U.S.C.
§ 2241 habeas corpus petition. Nipper argues that the 195-month prison sentence
imposed after he pled guilty to possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g), exceeds the maximum 120-month term authorized
by Congress. Specifically, he argues that because of several intervening U.S.
Supreme Court decisions, his prior convictions for common-law robbery and
“breaking or entering” do not qualify as predicate convictions supporting the
sentencing enhancement he received under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(1).1
In January 2015, we affirmed the dismissal of Nipper’s § 2241 petition. See
Nipper v. Warden, FCC Coleman-Medium, 597 F. App’x 581, 583 (11th Cir.
2015) (per curiam) (unpublished). Nipper then filed a petition for certiorari in the
Supreme Court. The Supreme Court granted that petition on June 30, 2015.
Nipper v. Pastrana, 576 U.S. ___, 135 S. Ct. 2946 (2015) (mem.). The Court
vacated our opinion and remanded for further consideration in light of Johnson v.
United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), which struck down the
residual clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), as unconstitutionally
vague. Nipper, 135 S. Ct. at 2946. On remand, we again affirm.
1 Under the ACCA, a defendant convicted under § 922(g) is subject to a mandatory
minimum 15-year prison sentence if he has three prior convictions for crimes that are either a
“violent felony” or “serious drug offense.” 18 U.S.C. § 924(e)(1). A conviction under § 922(g)
otherwise carries a maximum prison term of 10 years. Id. § 924(a)(2).
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A collateral attack on the legality of a federal conviction or sentence
generally may be brought only under 28 U.S.C. § 2255. Sawyer v. Holder, 326
F.3d 1363, 1365 (11th Cir. 2003). However, the “savings clause” of § 2255 allows
a federal prisoner to file a habeas petition pursuant to § 2241 if the prisoner can
show that the remedy under § 2255 is “inadequate or ineffective to test the legality
of his detention.” 28 U.S.C. § 2255(e).
The Supreme Court’s ruling in Johnson does not change our decision that
Nipper cannot proceed under § 2241 through the savings clause. The savings
clause does not apply to claims based on new rules of constitutional law—such
claims must be brought in a second or successive § 2255 motion under
§ 2255(h)(2). See Williams v. Warden, Fed. Bureau of Prisons, 713 F.3d 1332,
1342–43 (11th Cir. 2013) (explaining that 28 U.S.C. § 2255(h)(2) specifically
allows for a second or successive § 2255 motion “when the basis of the challenge
is a new rule of constitutional law” and the savings clause applies only to claims
“that are not covered by § 2255(h)” (quotation omitted)); Gilbert v. United States,
640 F.3d 1293, 1308 (11th Cir. 2011) (en banc) (refusing “to interpret the savings
clause in a way that would . . . render [§ 2255(h)] pointless”). Because Johnson
established a new rule of constitutional law, it cannot be the basis for relief under
the savings clause.
AFFIRMED.
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