                                                            [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                     FILED
                                                          U.S. COURT OF APPEALS
                             No. 10-13005                   ELEVENTH CIRCUIT
                         Non-Argument Calendar                  JULY 7, 2011
                       ________________________                  JOHN LEY
                                                                  CLERK
                D.C. Docket No. 8:10-cv-01333-SDM-AEP

TERRY C. LANCASTER,

                                            lllllllllllllllllllllPetitioner-Appellant,

                                  versus

WARDEN, FCC COLEMAN - MEDIUM,

                                           lllllllllllllllllllllRespondent-Appellee.

                      ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                                  (July 7, 2011)




Before BARKETT, MARCUS and BLACK, Circuit Judges.

PER CURIAM:
      Terry Lancaster, a federal prisoner proceeding pro se, appeals the district

court’s dismissal of his petition for writ of habeas corpus filed pursuant to 28

U.S.C. § 2241. Lancaster contends he is actually innocent of being a career

offender and asserts he is entitled to relief under § 2241 based on Gilbert v. United

States, 609 F.3d 1159 (11th Cir. 2010), opinion vacated on reh’g en banc, 11th

Cir., ___ F.3d __, (No. 09-12513, May 19, 2011) (en banc). Primarily, he

contends his conviction for “assault or battery in a county or municipal jail or

detention facility” is not a “crime of violence” for the purposes of career offender

sentencing under U.S.S.G. § 4B1.1, based on the Supreme Court decision in

Johnson v. United States, 130 S. Ct. 1265 (2010). Lancaster also contends his

other two convictions classified at sentencing as “crimes of violence” are related

within the meaning of U.S.S.G. § 4A1.2(a)(2).

      The availability of habeas relief under § 2241 is a question of law we review

de novo. Sawyer v. Holder, 326 F.3d 1363, 1365 n.4 (11th Cir. 2003). The

petitioner has the burden of establishing his right to federal habeas relief. Coloma

v. Holder, 445 F.3d 1282, 1284 (11th Cir. 2006). Generally, collateral attacks on

the validity of a federal conviction or sentence must be brought under § 2255.

Sawyer, 326 F.3d at 1365. In a typical case, a prisoner who previously filed a

§ 2255 motion to vacate must apply for and receive permission from the court of

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appeals before filing a successive § 2255 motion. 28 U.S.C. §§ 2244(b), 2255(h).

Only under very limited circumstances may a federal prisoner file a habeas

petition pursuant to § 2241 based on the “savings clause” of § 2255(e) which

requires a showing that the remedy provided under § 2255 is “inadequate or

ineffective to test the legality of [the petitioner’s] detention.” Sawyer, 326 F.3d at

1365.

        We recently vacated our panel opinion in Gilbert, and held “the savings

clause does not authorize a federal prisoner to bring in a § 2241 petition a claim,

which would otherwise be barred by § 2255(h), that the sentencing guidelines

were misapplied in a way that resulted in a longer sentence not exceeding the

statutory maximum.” Gilbert v. United States, 11th Cir., ___ F.3d __, (No. 09-

12513 at 70, May 19, 2011) (en banc). Specifically, we rejected a claim by a

federal prisoner that he was incorrectly sentenced as a career offender under

§ 4B1.1 based on a retroactively applicable Supreme Court decision holding one

of his predicate offenses did not satisfy the definition of a “crime of violence” in

§ 4B1.2(a). Id. at 20-21.

        Lancaster cannot follow the path to relief now foreclosed by our en banc

decision in Gilbert. The longest statutory maximum for Lancaster’s offenses is

life imprisonment, so his 292-month total sentence falls within the statutory range

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of imprisonment for his offense. See 21 U.S.C. § 841(b)(1)(A). Thus, his claim

falls squarely within the category of claims foreclosed by Gilbert. Additionally,

Lancaster’s other argument that his predicate offenses are “related” within the

meaning of the Guidelines is not cognizable on collateral review. He previously

raised the same argument on direct appeal so it too cannot meet the rigorous

standard of the savings clause. See United States v. Nyhuis, 211 F.3d 1340, 1343

(11th Cir. 2000). Accordingly, we affirm the district court’s dismissal of

Lancaster’s § 2241 petition for lack of jurisdiction.1

       AFFIRMED.




       1
          Lancaster also asserts that his prior conviction for robbery does not constitute a “crime
of violence.” Because Lancaster raises this issue for the first time on appeal, we will not address
this claim. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir.
2004).

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BARKETT, Circuit Judge, specially concurring:



      Although I agree that this Court’s decision in Gilbert v. United States, 11th

Cir., ___ F.3d ___, (No. 09-12513 at 70, May 19, 2011) (en banc), controls this

case, I adhere to the reasons expressed in my dissent in Gilbert for disagreeing

with the Court’s decision in Gilbert.




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