           Case: 14-12164   Date Filed: 07/23/2015   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-12164
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:13-cv-22992-CMA



ALBERT CAMPBELL,

                                                          Petitioner-Appellant,

                                 versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.

                      ________________________

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

                             (July 23, 2015)

Before WILSON, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Albert Campbell, a federal prisoner proceeding pro se, filed a petition for

writ of habeas corpus under 28 U.S.C. § 2241 pursuant to 28 U.S.C. § 2255(e)’s

“savings clause.” Campbell appeals the district court’s dismissal of his § 2241

petition for a lack of subject-matter jurisdiction. Campbell argues that his sentence

was improperly enhanced because the judge, not the jury, determined the specific

quantity of drugs to be attributed to him, which violated his constitutional rights.

In support, Campbell relies on Alleyne v. United States, 570 U.S. __, 133 S. Ct.

2151 (2013), which he argues is a new rule of constitutional law to be applied

retroactively on collateral review. However, because we conclude that Alleyne

does not apply retroactively on collateral review, Campbell is foreclosed from

proceeding pursuant to § 2255(e)’s saving clause. Therefore, we affirm the district

court’s dismissal of Campbell’s § 2241 petition for lack of jurisdiction.

                                          I.

      The following factual synopsis is undisputed. Over twenty years ago,

Campbell was indicted by a federal grand jury and charged with conspiring to

possess cocaine and cocaine base with the intent to distribute. After a jury found

Campbell guilty of the charged offense, Campbell received a sentence of 420-

months’ imprisonment. Subsequently, Campbell appealed his sentence. On direct

appeal, Campbell raised a number of issues, none of which challenged the

enhancements he received for the quantity of drugs attributed to him. We affirmed

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Campbell’s conviction and sentence. See United States v. Butler, 102 F.3d 1191

(11th Cir. 1997). Thereafter, Campbell filed a motion to vacate and correct his

sentence pursuant to 28 U.S.C. § 2255 alleging that his trial counsel was

ineffective in several ways, including that his trial counsel failed to object to the

quantity of drugs attributed to Campbell. Campbell’s § 2255 motion and his

Certificate of Appealability (COA) were denied by the district court. Treating

Campbell’s COA as a timely notice of appeal, this Court denied Campbell’s COA

as well. Several years later, however, Campbell filed a motion for reconsideration

of his § 2255 motion, but the district court concluded that his motion for

reconsideration was the equivalent of a successive § 2255 motion that required

prior permission from this court, which Campbell never obtained. Concluding also

that the cases Campbell relied on were not retroactively applicable, the district

court denied his motion for reconsideration. Campbell again appealed that

decision to this court, but we refused to grant him a COA. Campbell has since

then filed the instant petition for writ of habeas corpus pursuant to § 2241, which

was subsequently dismissed by the district court for lack of jurisdiction.

                                          II.

      We review de novo whether a prisoner may bring a § 2241 petition under the

savings clause of § 2255(e). Bryant v. Warden, FCC Coleman-Medium, 738 F.3d

1253, 1262 (11th Cir. 2013). “The applicability of the savings clause is a threshold

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jurisdictional issue, and we cannot reach questions that the district court never had

jurisdiction to entertain.” Williams v. Warden, Fed. Bureau of Prisons, 713 F.3d

1332, 1337 (11th Cir. 2013) (internal quotation marks omitted), cert. denied sub

nom. Williams v. Hastings, 135 S. Ct. 52 (2014). If the savings clause permits

Campbell’s § 2241 petition, then we may decide the substantive issue of whether

his sentence was improperly enhanced pursuant to the trial judge’s determination

of the specific quantity of drugs to be attributed to him. See id.

                                         III.

      Generally, a collateral attack on the validity of a federal sentence must be

brought under § 2255. See Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir.

2003). Under circumstances such as this, where a prisoner has previously filed a

§ 2255 motion, he must apply for and receive permission from the appropriate

court of appeals before filing a successive § 2255 motion. See 28 U.S.C.

§§ 2244(b)(3)(A), 2255(h). A successive motion must contain “a new rule of

constitutional law, made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable.” Id. § 2255(h)(2). However, “[u]nder the

savings clause of § 2255[(e)], a prisoner may file a § 2241 petition if an otherwise

available remedy under § 2255 is inadequate or ineffective to test the legality of his

detention.” Sawyer, 326 F.3d at 1365. Section 2255(e) applies by its own terms

irrespective of whether a prisoner failed to seek § 2255 relief or whether the trial

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court has previously denied him such relief; what is significant is whether § 2255

relief would not have adequately or effectively tested the legality of his

imprisonment. See Bryant, 738 F.3d at 1263. The burden is on the petitioner to

demonstrate that § 2255 relief was “inadequate or ineffective to test the legality of

his detention for purposes of § 2255(e).” Id. at 1262 (internal quotation marks

omitted). We have held that in order for a petitioner to establish that a § 2255

motion was inadequate or ineffective to test whether his detention was lawful, he

must demonstrate that:

      (1) throughout the petitioner’s sentencing, direct appeal, and first §
      2255 proceeding, this Court’s precedent had specifically and squarely
      foreclosed the claim raised in the § 2241 petition; (2) after the
      petitioner’s first § 2255 proceeding, the Supreme Court overturned
      that binding precedent; (3) that Supreme Court decision applies
      retroactively on collateral review; (4) as a result of that Supreme
      Court decision applying retroactively, the petitioner’s current sentence
      exceeds the statutory maximum; and (5) the savings clause of §
      2255(e) reaches his claim.

Jeanty v. Warden, FCI-Miami, 757 F.3d 1283, 1285 (11th Cir. 2014) (per curiam);

see also Bryant, 738 F.3d at 1274 (synthesizing circuit precedent for purposes of

interpreting § 2255(e) in a manner that “does not eviscerate or undermine §

2255(h)’s restrictions on second or successive § 2255 motions”). It is unnecessary

for the court to address all five requirements if the petitioner fails to satisfy any one

requirement. See Jeanty, 757 F.3d at 1285.




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      Here, Campbell could not bring his Alleyne claim under § 2255, as he

previously filed a § 2255 motion and did not obtain this court’s permission to file a

second or successive § 2255 motion. See 28 U.S.C. §§ 2244(b)(3)(A), 2255(h).

Thus, in order for the district court to have had jurisdiction over Campbell’s § 2241

petition, he was required to establish, through the lense of § 2255(e)’s savings

clause, that his prior § 2255 motion was “inadequate or ineffective.” See

§ 2255(e).

      Campbell fails to fulfill his burden of demonstrating one of the necessary

requirements to show that § 2255 relief would have been in adequate or

ineffective, and, consequently, there is no need for this court to address the

remaining four. See Jeanty, 738 F.3d at 1285. Particularly, Campbell fails to

establish that the Supreme Court’s ruling in Alleyne applies retroactively. See id.

We acknowledge that in Alleyne, the Supreme Court held that any fact that

aggravates the legally prescribed range of allowable sentences, including a fact that

increases the statutory minimum, is an element of the offense that must be

submitted to the jury and found beyond a reasonable doubt. 570 U.S. at ___, 133

S. Ct. at 2162–63. However, we have held that the Supreme Court’s ruling in

Alleyne does not apply retroactively on collateral review for the following reasons:

1) the Supreme Court has not held that Alleyne’s application is retroactive; 2) the

Supreme Court explained that Alleyne is an application of the rule established in

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Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), which is not

retroactively applicable; and 3) our sister circuits (that have had the opportunity to

consider whether Alleyne applies retroactively on collateral review in a published

decision) have concluded that it did not. See Jeanty, 757 F.3d at 1285. Because

we have held that Alleyne does not apply retroactively on collateral review,

Campbell is foreclosed from proceeding pursuant to § 2255(e)’s saving clause.

                                         IV.

      Therefore, we conclude that district court did not err in dismissing

Campbell’s § 2241 petition. Campbell’s § 2241 petition fails to recapture the

jurisdiction of the district court pursuant to § 2255(e)’s savings clause because

Campbell’s § 2241 petition relies on the Supreme Court’s ruling in Alleyne, which

is not retroactively applicable. To the extent that Campbell seeks to rely on

Alleyne for the proposition that the facts of his prior convictions should have been

submitted to a jury before his sentence could be enhanced, his reliance here is also

misguided. See Apprendi, 530 U.S. 466, 120 S. Ct. 2348 (holding that any fact,

other than the fact of a prior conviction, is required to be submitted to the jury and

proven beyond a reasonable doubt); see also United States v. Harris, 741 F.3d

1245, 1249–50 (11th Cir. 2014). Accordingly, the district court’s dismissal of

Campbell’s § 2241 habeas petition is affirmed.

      AFFIRMED.

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