Abel Diaz v. Warden, FCC Coleman - USP I

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14198
Non-Argument Calendar
____________________
ABEL DIAZ,
Petitioner-Appellant,
versus
WARDEN, FCC COLEMAN - USP I,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 5:22-cv-00228-CEM-PRL
____________________
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2 Opinion of the Court 22-14198
Before W ILSON , N EWSOM, and G RANT, Circuit Judges.
PER CURIAM:
Abel Diaz, a federal prisoner proceeding pro se, appeals the
district court’s sua sponte dismissal of his 28 U.S.C. § 2241 petition
for a writ of habeas corpus. He argues that the district court had
jurisdiction under the saving clause of 28 U.S.C. § 2255(e) because
his remedy under § 2255 was inadequate and ineffective.
“We review de novo a district court’s dismissal for lack of ju-
risdiction.” Howard v. Warden, 776 F.3d 772, 775 (11th Cir. 2015).
If a district court determines at any time that it lacks subject-matter
jurisdiction, it must dismiss the action. Fed. R. Civ. P. 12(h)(3).
Likewise, we review de novo whether a prisoner may bring a peti-
tion for a writ of habeas corpus under the saving clause of § 2255(e).
McCarthan v. Dir. of Goodwill Indus. Suncoast, Inc., 851 F.3d 1076,
1081 (11th Cir. 2017) (en banc). A district court only has jurisdic-
tion over a federal prisoner’s habeas petition if it falls within the
saving clause. McCarthan, 851 F.3d at 1080.
A federal prisoner who seeks to collaterally attack the valid-
ity of his sentence must file a motion to vacate under 28 U.S.C.
§ 2255. Id. Challenges to the execution of a sentence, rather than
to its validity, may be brought through a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241. Id. at 1089.
The saving clause of § 2255 permits a federal prisoner to file
a § 2241 habeas petition if the remedy provided under § 2255 is “in-
adequate or ineffective to test the legality of his detention.” 28
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22-14198 Opinion of the Court 3
U.S.C. § 2255(e); see also Jones v. Hendrix, 143 S. Ct. 1857, 1863
(2023). The petitioner bears the burden of establishing that § 2255
is inadequate or ineffective. McCarthan, 851 F.3d at 1081.
To determine whether a § 2255 motion would be inade-
quate or ineffective, the key consideration is whether the prisoner
would have been permitted to bring that type of claim in a § 2255
motion. Id. at 1086. If so, the § 2255 remedy is adequate and effec-
tive, even if the specific claim would have been foreclosed by cir-
cuit precedent or subject to a procedural bar. Id.
The savings clause is typically invoked to cover “unusual cir-
cumstances in which it is impossible or impracticable for a prisoner
to seek relief from the sentencing court.” Jones, 143 S. Ct. at 1866.
Three clear instances of such circumstances include: (1) when rais-
ing claims challenging the execution of the sentence, such as the
deprivation of good-time credits or parole determinations; (2)
when the sentencing court is unavailable, such as when the sen-
tencing court itself has been dissolved; or (3) when practical con-
siderations, such as multiple sentencing courts, might prevent a pe-
titioner from filing a motion to vacate. Id. at 1866–67; McCarthan,
851 F.3d at 1092–93.
Here, Diaz argues that § 2255 was an inadequate and inef-
fective remedy to test the legality of his detention because he raised
an Apprendi1 argument on direct appeal and, therefore, could not
raise it again in a § 2255 motion. Diaz also argues McCarthan does
1 Apprendi v. New Jersey, 530 U.S. 466 (2000).
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4 Opinion of the Court 22-14198
not apply here because it did not address whether a § 2255 motion
is inadequate or ineffective when an argument was raised on direct
appeal.
Diaz’s petition, however, does not fall into an “unusual cir-
cumstance[] in which it is impossible or impracticable . . . to seek
relief from the sentencing court.” Jones, 143 S. Ct. at 1866. He is
challenging the validity of his sentence, not its execution; the sen-
tencing court, the Southern District of Florida, is not unavailable;
and he was not sentenced by multiple courts. Id. Accordingly, the
district court did not err in dismissing Diaz’s petition because his
claims challenged the validity of his sentence and could have been
raised in a § 2255 motion to vacate. Although his arguments would
have been procedurally barred because he already raised them on
direct appeal, that does not make a § 2255 motion inadequate or
ineffective within the meaning of the saving clause. Therefore, his
petition did not fall within the saving clause and the district court
properly dismissed it for lack of jurisdiction.
AFFIRMED.
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