Slusser v. Vereen

36 F.4th 590

Larry Michael SLUSSER, Petitioner – Appellant,

v.Acting Warden VEREEN, Respondent – Appellee.

No. 19-7482

United States Court of Appeals, Fourth Circuit.

Argued: September 24, 2021

Decided: June 10, 2022

ARGUED: Reedy Charles Swanson, HOGAN LOVELLS US LLP, Washington, D.C., for Appellant. Leesa Washington, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee. ON BRIEF: Peter M. McCoy, Jr., United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Before KING and RUSHING, Circuit Judges, and John A. GIBNEY, Jr., Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge Rushing wrote the majority opinion, in which Senior Judge Gibney joined. Judge King wrote a dissenting opinion.

RUSHING, Circuit Judge:

After the Supreme Court held the residual clause of the Armed Career Criminal Act (ACCA) unconstitutional in Johnson v. United States , 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), Larry Slusser, a federal prisoner, received authorization to file a second 28 U.S.C. § 2255 motion challenging his sentence. The district court for the Eastern District of Tennessee denied Slusser's motion on the merits, and the Sixth Circuit affirmed on procedural grounds. Now, Slusser seeks to bring the same Johnson claim again, this time as a habeas petition under 28 U.S.C. § 2241. The district court for the District of South Carolina rejected Slusser's petition for lack of jurisdiction. Because the strictures of Section 2255 cannot be evaded so easily, we affirm.

I.

A.

In 2011, Slusser pleaded guilty to possessing a firearm as a felon in violation of 18 U.S.C. § 922(g). Ordinarily, a Section 922(g) offense carries a ten-year statutory maximum term of imprisonment. Id. § 924(a)(2). But under ACCA, a defendant with three prior convictions for a violent felony or serious drug offense is subject to a minimum prison sentence of fifteen years. Id. § 924(e)(1). At Slusser's sentencing, the district court for the Eastern District of Tennessee applied ACCA's sentencing enhancement, identifying three prior convictions for qualifying offenses: a 1994 burglary; 1999 drug trafficking; and a 1999 conviction for two offenses—aggravated burglary and aggravated assault. The court sentenced Slusser to the mandatory minimum of fifteen years' imprisonment, a sentence to which all parties agreed.

Slusser's plea agreement included a waiver of the right to appeal and the right to collaterally attack his conviction or sentence for any reason except ineffective assistance of counsel or prosecutorial misconduct. Consistent with that waiver, Slusser did not appeal. He filed his first Section 2255 motion in 2012, raising claims of prosecutorial misconduct and ineffective assistance of counsel. The district court for the Eastern District of Tennessee denied Slusser's motion, and the Court of Appeals for the Sixth Circuit declined to issue a certificate of appealability.

Following the Supreme Court's decision in Johnson , Slusser sought leave to file a second Section 2255 motion, contending that his prior convictions no longer qualified as ACCA predicates. The Sixth Circuit found the statutory requirements for a second or successive Section 2255 motion satisfied, see 28 U.S.C. § 2255(h)(2), and so authorized the district court for the Eastern District of Tennessee to consider Slusser's motion. After briefing, the district court denied the motion on the merits, concluding that Slusser's burglary, aggravated assault, and drug trafficking convictions remained proper ACCA predicates even after the Supreme Court invalidated the residual clause. See Slusser v. United States (Slusser I ), Nos. 3:11-cr-78, 3:16-cv-531, 2016 WL 6892757 (E.D. Tenn. Nov. 22, 2016).

As alluded to previously, a federal prisoner has no right to appeal the denial of a Section 2255 motion unless a judge issues a certificate of appealability. See 28 U.S.C. § 2253(c) ; Fed. R. App. P. 22(b). The Sixth Circuit granted Slusser leave to appeal a single ruling from the district court's decision on his second Section 2255 motion: that his aggravated assault conviction continues to qualify as a violent felony under ACCA. See Slusser v. United States (Slusser II ), 895 F.3d 437, 438 (6th Cir. 2018). But after briefing and argument, the Sixth Circuit declined to reach the merits and instead affirmed based on the collateral-attack waiver in Slusser's plea agreement. Id. at 440.

A year later, in a different case, the Sixth Circuit revisited the question whether a collateral-attack waiver is enforceable when a prisoner challenges his sentence as exceeding the statutory maximum based on a subsequent change in the law. See Vowell v. United States , 938 F.3d 260 (6th Cir. 2019). The court concluded that such waivers are not enforceable under those circumstances and specifically identified Slusser II as wrongly decided. See id. at 266–268.

B.

After the Sixth Circuit affirmed the denial of his second Section 2255 motion, Slusser filed a Section 2241 habeas petition in the District of South Carolina, raising the same Johnson challenge that had been the subject of his second Section 2255 motion.^* The district court dismissed the petition for lack of jurisdiction, concluding that Section 2241 was not available to Slusser because he could not satisfy the requirements of Section 2255(e), which limits federal prisoners' access to Section 2241. As the court explained, because Slusser's Johnson argument had already been found to meet the gatekeeping provisions of Section 2255(h)(2) for second or successive motions, Section 2255 was not inadequate or ineffective to test the legality of his detention and Slusser could not resort to Section 2241. The district court subsequently denied reconsideration, noting that Vowell did not change its analysis.

Slusser timely appealed, and we have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a).

II.

"[I]t is well established that defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through [ Section] 2255." Rice v. Rivera , 617 F.3d 802, 807 (4th Cir. 2010). That statute "affords every federal prisoner the opportunity to launch at least one collateral attack to any aspect of his conviction or sentence." Marlowe v. Warden, FCI Hazelton , 6 F.4th 562, 568 (4th Cir. 2021) (internal quotation marks and brackets omitted); see 28 U.S.C. § 2255(a). For most, that is the end of the road. But Congress has given federal prisoners the opportunity to pursue a second Section 2255 motion in certain "very limited circumstances." Lester v. Flournoy , 909 F.3d 708, 710 (4th Cir. 2018). Specifically, Congress has authorized courts of appeals to permit a second or successive motion if a federal prisoner makes a prima facie showing that either (1) "newly discovered evidence" proves he was not guilty of his offense or (2) a "previously unavailable" "new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court," entitles him to relief. 28 U.S.C. § 2255(h) ; see id. § 2244(b).

A federal prisoner may pursue habeas relief by way of a Section 2241 petition—like Slusser attempts to do here—only if it "appears that the [ Section 2255 ] remedy by motion is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). Our Court has repeatedly acknowledged that this so-called "savings clause" must be interpreted "narrowly," as a contrary rule " ‘would effectively nullify’ [Section] 2255's specific limitations." Farkas v. Butner , 972 F.3d 548, 556 (4th Cir. 2020) (quoting In re Jones , 226 F.3d 328, 333 (4th Cir. 2000) ); see also Lester , 909 F.3d at 716. We have observed that the clause "juxtaposes the terms ‘inadequate or ineffective’ with the phrase ‘to test the legality of [a prisoner's] detention,’ " and "a test is not ‘inadequate’ just because someone fails it." Farkas , 972 F.3d at 555 (internal quotation marks and brackets omitted). Therefore, we have consistently reasoned that the " Section 2255 remedy ‘is not rendered inadequate or ineffective merely because an individual has been unable to obtain relief under that provision, or because an individual is procedurally barred from filing a Section 2255 motion.’ " Marlowe , 6 F.4th at 568–569 (brackets omitted) (quoting In re Vial , 115 F.3d 1192, 1194 n.5 (4th Cir. 1997) (en banc)); see also Farkas , 972 F.3d at 555 ; Lester , 909 F.3d at 716 ; Rice , 617 F.3d at 807 ; In re Jones , 226 F.3d at 333.

Whether Section 2255 is inadequate or ineffective to test the legality of Slusser's detention is a jurisdictional question we review de novo. See Marlowe , 6 F.4th at 568. Slusser bears the burden, id. , and we conclude that he has failed to carry it.

Quite simply, we know that Section 2255 is up to the task of testing the legality of Slusser's detention because he has already pursued his argument in a Section 2255 motion and received a judgment on it. In his Section 2241 petition before us, Slusser seeks to argue that, after the Supreme Court held ACCA's residual clause unconstitutional in Johnson , his prior Tennessee convictions no longer qualify as ACCA predicates to support the statutory sentencing enhancement applied by the district court. The Sixth Circuit authorized Slusser to file a second Section 2255 motion raising that exact claim because it asserts "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255(h)(2) ; see Order, In re Slusser , No. 16-5671 (6th Cir. Aug. 18, 2016). In other words, the Sixth Circuit determined that Congress has provided for claims like Slusser's to be pursued by way of a second or successive Section 2255 motion. The district court for the Eastern District of Tennessee then adjudicated Slusser's second Section 2255 motion on the merits; it...