ORDER

STEVEN D. MERRYDAY, District Judge.

Deon Antonio Chealy moves (Doc. 1) under 28 U.S.C. § 2241 for a writ of habeas corpus. Claiming that his predicate convictions do not qualify as "violent felonies" under 18 U.S.C. § 924(e), the Armed Career Criminal Act (ACCA), Chealy challenges his armed career criminal enhancement. The Warden argues (Doc. 4) that Chealy cannot demonstrate the threshold required for relief under the savings clause of 28 U.S.C. § 2255(e) to proceed under 28 U.S.C. § 2241. Chealy replies (Doc. 6) asserting that the court has jurisdiction to consider his petition under Section 2241. In response to the court's directive, the Warden filed a supplemental response. (Doc. 11)

On June 26, 2015, the Supreme Court ruled that the "residual clause" of the ACCA is unconstitutionally vague and violates due process.1 Johnson v. United States, 576 U.S. ___, 135 S.Ct. 2551, 2555 (2015). On April 18, 2016, Welch v. United States, 136 S.Ct. 1257, 1268 (2016), held that "Johnson announced a substantive rule that has retroactive effect in cases on collateral review." The gravamen of Chealy's 28 U.S.C. § 2241 petition is that one or more of Chealy's prior convictions cannot be used to enhance his sentence under the ACCA, presumably because the conviction was deemed a violent felony under the residual clause of the ACCA. (Doc. 1)

For the reasons discussed below, the Section 2241 petition must be dismissed without prejudice to Chealy's filing an application in the circuit court of appeals for leave to file a second or successive motion under 28 U.S.C. § 2255.

Background

In Case No. 2:04-cr-00051-33-DNF the indictment charges Chealy, who was previously convicted of a felony, with possessing a firearm in violation of 18 U.S.C. § 922(g)(1). (Cr. Doc. 1) Chealy was convicted by a jury. (Cr. Doc. 67; Cr. Doc. 78) The district court sentenced Chealy as an armed career criminal to two hundred months of imprisonment and sixty months of supervised release. (Cr. Doc. 78; Cr. Doc. 95)

The trial court found that Chealy had four convictions for "violent felonies" based on Chealy's three convictions for burglary of a dwelling or structure and his conviction for terroristic threats and burglary, which qualified him for an enhanced sentence under 18 U.S.C. 924(e). (Cr. Doc. 95, pp. 34-35) Chealy objected to use of the burglary convictions as a Section 924(e) predicate conviction and objected to the convictions' use to enhance the sentence without a supportive jury finding. (Cr. Doc. 95, pp. 12, 27) Chealy appealed his conviction and sentence. (Cr. Doc. 9.) The Eleventh Circuit Court of Appeals affirmed Chealy's conviction and sentence. (Cr. Doc. 100); United States v. Chealy, 185 Fed. App'x. 928 (11th Cir. 2006). On November 27, 2016, the United States Supreme Court denied Chealy's petition for a writ of certiorari. Chealy v. United States, 549 U.S. 1065 (2006).

Arguing that his counsel rendered ineffective assistance for failing to argue against the validity of his convictions and for not performing adequate research, on December 17, 2007, Chealy moved for relief under 28 U.S.C. § 2255 in Case No. 2:07-cv-768-FtM-33DNF. (Cr. Doc. 108) Chealy also argued that he was deprived of the protections of the Fifth and Sixth Amendments of the Constitution because the convictions used to enhance his Section 924(e) sentence were not heard by the jury or admitted by Chealy. Chealy further argued that the use of the convictions violated the Fifth Amendment on grounds of duplicity and multiplicity. The district court denied the petition on March 17, 2009. (Cr. Doc. 111) Alleging that the court improperly enhanced his sentence under ACCA, Chealy filed the instant petition under 28 U.S.C. § 2241 on September 16, 2013. (Doc. 1)

Discussion

Chealy submits this action as a petition for writ of habeas corpus under 28 U.S.C. § 2241, which provides a means for a prisoner to challenge the execution of his sentence. However, Chealy attacks the validity of his sentence arguing the impropriety of the career offender enhancement. Ordinarily, a petitioner must file a collateral attack on a conviction or sentence in the district of conviction under 28 U.S.C. § 2255. 28 U.S.C. § 2255(a); Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir. 2003).

Chealy's earlier motion under Section 2255 was denied as untimely. Because Chealy's previous Section 2255 motion was denied by the court that imposed his sentence, Chealy may not file another motion under Section 2255 without first receiving permission from the appropriate United States Court of Appeals, which Chealy has not done. 28 U.S.C. § 2255(h); Darby v. Hawk-Sawyer, 405 F.3d 942, 945 (11th Cir. 2005) ("[w]hen a prisoner has previously filed a Section 2255 motion to vacate, he must apply for and receive permission . . . before filing a successive Section 2255 motion"). Because Chealy is barred from filing another motion under Section 2255, he files this petition for relief under 28 U.S.C. § 2241, although 28 U.S.C. Section 2255(e) (the "savings clause") expressly limits the availability of a Section 2241 petition.

A federal prisoner may move under 28 U.S.C. § 2241 only if a 28 U.S.C. § 2255 motion "is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e); see also Williams v. Warden, Federal Bureau of Prisons, 713 F.3d 1332, 1338 (11th Cir. 2013) and Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253 (11th Cir. 2013). Chealy has not demonstrated that a motion under Section 2255 is inadequate or ineffective to test the legality of his detention. To the contrary, the Supreme Court has clarified that Johnson is retroactive to cases on collateral review. Welch, 136 S. Ct. at 1268. Accordingly, Chealy has the opportunity to move in the circuit of conviction for permission to file a second or successive motion under Section 2255. See 28 U.S.C. § 2255(h) (stating inter alia that a panel of the appropriate court of appeals must certify that a second or successive motion under Section 2255 argues "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.")

"In light of the Supreme Court's holdings in Johnson and Welch, federal prisoners who can make a prima facie showing that they previously were sentenced, at least in part, in reliance on [the] ACCA's now-voided residual clause are entitled to file a second or successive § 2255 motion in the district court." In re David Snoddy, Case No. 16-11890, at p. 3 (11th Cir. May 3, 2016) (granting the petitioner's request to file a second or successive motion under Section 2255 where the petitioner made a prima facie showing that two of his three ACCA qualifying predicate felonies no longer qualified in light of Johnson) (citing In re Robinson, 2016 WL 1583616 (11th Cir. 2016)).

Chealy is cautioned that a strict limitation governs the filing of both a first or a successive motion under Section 2255.2 The Supreme Court has stated that "if this Court decides a case recognizing a new right, a federal prisoner seeking to assert that right will have one year from this Court's decision within which to file his § 2255 motion." Dodd v. United States, 545 U.S. 353, 358-59 (2005). Therefore, the year within which to file a successive Section 2255 petition begins to run on the day the Supreme Court initially recognizes the new rule, not the day the rule becomes retroactive. Johnson was decided June 26, 2015.

Appointment of Counsel

The clerk is directed to enter the appearance of Assistant Federal Defender Rosemary Cakmis on behalf of the defendant. As outlined in the April 29, 2016 order in Case No. 8:16-mc-53-T-23, the Federal Defender must review the record in the defendant's case to determine whether the defendant is colorably eligible for relief under Johnson and Welch, must determine the existence of any conflict of representation, and otherwise must proceed as directed in the order in Case No. 8:16-mc-53-T-23.

The defendant must direct to:

any inquiry concerning eligibility for a sentence reduction, including whether the defendant must move to vacate under 28 U.S.C. § 2255 or must move to obtain permission from the Eleventh Circuit Court of Appeals to file a second or successive motion under § 2255.

Conclusion

The petition under Section 2241 (Doc. 1) is DISMISSED without prejudice.3

The clerk must enter judgment, terminate any pending motion, and close the case.