Norton Helton v. Warden

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14306
Non-Argument Calendar
____________________
NORTON HELTON,
Petitioner-Appellant,
versus
WARDEN,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:19-cv-00031-WHA-KFP
____________________
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2 Opinion of the Court 21-14306
Before R OSENBAUM , NEWSOM , and GRANT, Circuit Judges.
PER CURIAM:
Norton Helton, a federal prisoner, appeals the dismissal of
his 28 U.S.C. § 2241 habeas corpus petition for lack of jurisdiction.1
But his arguments are foreclosed by
McCarthan v. Director of
Goodwill Industries-Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017)
(en banc), and we therefore affirm the dismissal.
Whether a prisoner may bring a § 2241 petition under the
saving clause of § 2255(e) is a question of law that we review
de
novo.
Id. at 1081. “The petitioner bears the burden of establishing
that the remedy by motion was inadequate or ineffective to test the
legality of his detention.”
Id. (quotation omitted).
Helton’s sentencing court denied his first § 2255 motion,2
and the Seventh Circuit denied a certificate of appealability. Hel-
ton then discovered evidence revealing a potential claim under
Na-
pue v. Illinois, 360 U.S. 264 (1959). He sought permission to file a
successive § 2255 motion based on the “new evidence” exception—
which requires that the “newly discovered evidence . . . , if proven
1 Helton proceeds
pro se. Accordingly, his “pleadings are held to a less strin-
gent standard . . . and will, therefore, be liberally construed.”
Tannenbaum v.
United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
2 Section 2255 motions are filed in the sentencing court, which for Helton is
the Northern District of Illinois. 28 U.S.C. § 2255(a). Section 2241 petitions
are brought in the place of custody.
Id. § 2241(a).
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21-14306 Opinion of the Court 3
and viewed in light of the evidence as a whole, would be sufficient
to establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense.” 28
U.S.C. § 2255(h)(1). But the Seventh Circuit decided that this
standard was not met and denied his application.
Helton then filed a § 2241 petition under the saving clause
of 28 U.S.C. § 2255(e). But he cannot circumvent the procedural
bar this way. To use § 2241, a prisoner must establish that the rem-
edy provided under § 2255 is inadequate or ineffective to test the
legality of his detention.
Id. § 2255(e). Under our precedent, three
circumstances satisfy this standard: (1) when the petitioner chal-
lenges the
execution of his sentence; (2) when the sentencing court
is unavailable; or (3) when “practical considerations (such as multi-
ple sentencing courts) might prevent a petitioner from filing a mo-
tion to vacate.”
McCarthan, 851 F.3d at 1092–93. Section 2255 is
adequate and effective even when a procedural bar prevents re-
view on the merits and forecloses relief.
Id. at 1089–90.
Helton seeks to recast his “second or successive” procedural
bar as a “practical consideration” by emphasizing that claims of trial
misconduct are often unknown at the time of the first § 2255 mo-
tion. But
McCarthan’s exception dealt with “practical considera-
tions . . . [which] might prevent . . .
filing a motion to vacate”—that
is, practical considerations about the “available process,” not about
the likelihood of “substantive relief.”
Id. at 1086, 1093 (emphasis
added). This petition does not fall within
McCarthan’s “practical
considerations” exception.
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4 Opinion of the Court 21-14306
Alternatively, Helton asks us to adopt the Seventh Circuit’s
newly discovered evidence rule from
In re Davenport, 147 F.3d 605
(7th Cir. 1998). But in
McCarthan, we expressly considered
Dav-
enport and declined to adopt its test. 851 F.3d at 1084–85. And we
don’t defer to the circuit law of the sentencing court in a § 2241
habeas petition.
Based on a review of the record and the parties’ briefs, we
conclude that, under our precedent, the district court properly held
that a § 2255 motion is not inadequate or ineffective to test the le-
gality of his detention. So Helton does not satisfy the saving clause
of § 2255(e), and the district court lacked jurisdiction to consider
his § 2241 petition. Accordingly, we affirm.
AFFIRMED.
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