           Case: 13-14862   Date Filed: 01/07/2015   Page: 1 of 7


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-14862
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 5:12-cv-00271-WTH-PRL



RAFAEL ANTONIO HERRERA,

                                                          Petitioner-Appellant,

                                  versus

WARDEN, FCC COLEMAN - USP I,

                                                        Respondent-Appellee.

                      ________________________

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

                            (January 7, 2015)

Before HULL, MARCUS, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Rafael Herrera appeals the district court’s dismissal of his habeas corpus

petition filed pursuant to 28 U.S.C. § 2241. On appeal, Herrera argues that the

savings clause of 28 U.S.C. § 2255(e) applies to his claim because his sentence of

life imprisonment under 21 U.S.C. § 841(b)(1)(A)(iii) exceeded the statutory

maximum for his offense. He argues that the district court sentenced him based on

a quantity of drugs and drug type that were not charged in the indictment or proven

to a jury beyond a reasonable doubt. In support of his claim, he relies on the

Supreme Court’s decisions in DePierre v. United States, 564 U.S. __, 131 S.Ct.

2225 (2011), Alleyne v. United States, 570 U.S. __, 133 S.Ct. 2151 (2013),

McQuiggin v. United States, 569 U.S. __, 133 S.Ct. 1924 (2013), and Burrage v.

United States, 571 U.S. __, 134 S.Ct. 881 (2014). He further contends that his

mandatory life sentence violates the Ex Post Facto Clause under Peugh v. United

States, 569 U.S. __, 133 S.Ct. 2072 (2013). After careful review, we affirm.

      The availability of habeas relief under 28 U.S.C. § 2241 presents a question

of law that we review de novo. Cook v. Wiley, 208 F.3d 1314, 1317 (11th Cir.

2000). Typically, collateral attacks on the validity of a federal conviction or

sentence must be brought under § 2255. Sawyer v. Holder, 326 F.3d 1363, 1365

(11th Cir. 2003). Challenges to the execution of a sentence, rather than the validity

of the sentence itself, are properly brought under § 2241. Antonelli v. Warden,

U.S.P. Atlanta, 542 F.3d 1348, 1352 (11th Cir. 2008).


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      The “savings clause” of § 2255 permits a federal prisoner, under very

limited circumstances, to file a habeas petition pursuant to § 2241. Sawyer, 326

F.3d at 1365. Under the savings clause, a court may entertain a § 2241 petition

attacking custody resulting from a federally imposed sentence if the petitioner

establishes that the remedy available under § 2255 is “inadequate or ineffective to

test the legality of his detention.” 28 U.S.C. § 2255(e); see also Sawyer, 326 F.3d

at 1365. We have held that the savings clause is a jurisdictional provision, such

that a petitioner must show that § 2255 is “inadequate or ineffective” before the

district court has jurisdiction to review the § 2241 petition. Williams v. Warden,

Fed. Bureau of Prisons, 713 F.3d 1332, 1338-40 (11th Cir. 2013), pet. for cert.

filed, (U.S. Apr. 8, 2014) (No. 13-1221). The petitioner bears the burden of

demonstrating that the § 2255 remedy is inadequate or ineffective to test the

legality of his detention. Turner v. Warden, 709 F.3d 1328, 1333 (11th Cir.), cert.

denied, 133 S.Ct. 2873 (2013).

      We have stated that the savings clause “at the very least, applies to

actual-innocence claims due to a non-existent offense.” Bryant v. Warden, FCC

Coleman-Medium, 738 F.3d 1253, 1281 (11th Cir. 2013). Additionally, the

savings clause allows a petitioner to bring a claim that he was erroneously

sentenced above the statutory maximum penalty. Id. at 1274. To show that a prior

§ 2255 motion was inadequate or ineffective to test the legality of his detention, a


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petitioner challenging his sentence must satisfy a five-part test: (1) throughout the

petitioner’s sentencing, direct appeal, and first § 2255 proceeding, our precedent

squarely foreclosed the claim raised in the § 2241 petition; (2) the Supreme Court

overturned that binding precedent after the petitioner’s first § 2255 proceeding;

(3) that Supreme Court decision applies retroactively to cases on collateral review;

(4) as a result of that Supreme Court decision, the petitioner’s sentence exceeds the

statutory maximum sentence; and (5) the savings clause of § 2255 reaches the

petitioner’s claim. Jeanty v. Warden, FCI-Miami, 757 F.3d 1283, 1285 (11th Cir.

2014).

          In Apprendi v. New Jersey, the Supreme Court held that any fact 1 that

increases the penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury and proved beyond a reasonable doubt. 530 U.S. 466, 490,

120 S.Ct. 2348, 2362-64 (2000). In light of Apprendi, we have explained that the

enhanced penalties in 21 U.S.C. § 841(b) cannot be applied unless the jury

determines the drug type and quantity involved in the drug conspiracy offenses.

United States v. Sanders, 668 F.3d 1298, 1309-10 (11th Cir. 2012). However, we

have determined that Apprendi does not apply retroactively to cases on collateral

review. McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001). In

O’Brien, the Supreme Court applied the rule in Apprendi to conclude that the


1
    This excludes the fact of prior conviction.
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“machinegun” provision of 18 U.S.C. § 924(c)(1)(B)(ii) was an element of the

offense that must be proved to the jury. O’Brien, 560 U.S. at 235, 130 S.Ct. at

2180. In Alleyne, the Supreme Court further determined that any fact, other than

the fact of a prior conviction, that increases the applicable statutory mandatory

minimum sentence for a crime must be submitted to a jury and found beyond a

reasonable doubt. 570 U.S. at __, __, __, 133 S.Ct. at 2155, 2160 n.1, 2163. We

recently held that Alleyne does not apply retroactively to cases on collateral review.

Jeanty, 757 F.3d at 1285. In DePierre, the Supreme Court held that “the term

‘cocaine base’ as used in § 841(b)(1) means not just ‘crack cocaine,’ but cocaine in

its chemically basic form.” 564 U.S. at __, 131 S.Ct. at 2237.

      In Burrage, the Supreme Court held that a defendant cannot be held liable

under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) where the

use of a drug distributed by the defendant is not an independently sufficient cause

of the victim’s death or serious bodily injury unless the drug use is a but-for cause

of the death or injury. Burrage, 571 U.S. at __, 134 S.Ct. at 892. In McQuiggin,

the Supreme Court held that there is an actual innocence exception to the statute of

limitations in the AEDPA. 569 U.S. __, 133 S.Ct. at 1932-35. In Peugh, the

Supreme Court held that under the Ex Post Facto Clause, a defendant cannot be

sentenced under Guidelines put into effect after he committed his criminal acts,




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where the subsequent Guidelines provide for a higher advisory sentencing range.

568 U.S. at __, 133 S.Ct. at 2078.

         Herrera has failed to open the portal to § 2241 because he has failed to meet

all five requirements of the five-part test established in Bryant. 738 F.3d at 1281.

Herrera has failed to establish the third requirement because none of the cases upon

which he relies apply retroactively on collateral review.2 Herrera’s argument that

the district court erred under Alleyne and O’Brien with respect to the drug type and

quantity found at sentencing is an Apprendi-based argument. We have held that

both Apprendi and Alleyne are not retroactively applicable to cases on collateral

review. See McCoy, 266 F.3d at 1258; Jeanty, 757 F.3d at 1285.

         Because the Supreme Court in O’Brien applied the rule in Apprendi to

conclude that the “machinegun” provision of 18 U.S.C. § 924(c)(1)(B)(ii) was an

element of the offense that must be proved to the jury, it necessarily follows that

O’Brien does not apply retroactively to cases on collateral review. O’Brien, 560

U.S. at 235, 130 S.Ct. at 2180; Cf. McCoy, 266 F.3d at 1258. Moreover, DePierre

did not narrow the interpretation of § 841(b), as it expanded the definition of

cocaine base to include all cocaine in its chemically basic form. DePierre, 564

U.S. at __, 131 S.Ct. at 2237. Herrera’s reliance on Burrage and McQuiggin is

similarly misplaced because those cases are inapposite to his argument that the


2
    Furthermore, Herrera has failed to prove that his sentence exceeds the statutory maximum.
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drug quantity and type needed to be charged and proved beyond a reasonable

doubt.

         We need not consider Herrera’s argument that his sentence violates the Ex

Post Facto Clause under Peugh because Herrera did not raise this argument before

the district court. See Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir. 1994)

(concluding that we would not address an issue that was not raised in the § 2241

petition). However, Herrera’s argument under Peugh fails in any event because it

is in essence an argument under United States v. Booker, 543 U.S. 220, 125 S.Ct.

738 (2005), and we have held that Booker does not apply retroactively to cases on

collateral review. See Varela v. United States, 400 F.3d 864, 868 (11th Cir. 2005)

(concluding that Booker did not apply retroactively to § 2255 cases on collateral

review).

         Because Herrera fails to show that his claim satisfied the savings clause of §

2255, he cannot proceed under § 2241. Therefore, the district court did not have

jurisdiction over Herrera’s § 2241 petition, and did not err in dismissing the

petition. Accordingly, we affirm.

         AFFIRMED.




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