           Case: 15-13344   Date Filed: 04/24/2017   Page: 1 of 4


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-13344
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 5:14-cv-00673-WTH-PRL



KINGSLEY BERNARD,

                                                          Petitioner-Appellant,

                                versus

FCC COLEMAN WARDEN,

                                                        Respondent-Appellee.

                      ________________________

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

                             (April 24, 2017)

Before TJOFLAT, HULL, and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:
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      Kingsley Bernard, a federal prisoner proceeding pro se, appeals the district

court’s dismissal of his 28 U.S.C. § 2241 habeas corpus petition. On appeal,

Bernard argues that he satisfies the requirements of the § 2255(e) saving clause

because Eleventh Circuit precedent previously foreclosed his claim. After a

review of the record and consideration of the parties’ briefs, we affirm.

      We review de novo whether a prisoner may bring a petition for a writ of

habeas corpus under the saving clause of § 2255(e). McCarthan v. Dir. of

Goodwill Indus.-Suncoast, Inc., No. 12-14989, manuscript op. at 6 (11th Cir. Mar.

14, 2017) (en banc).

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

sentence must be brought under 28 U.S.C. § 2255. Sawyer v. Holder, 326 F.3d

1363, 1365 (11th Cir. 2003). Challenges to the execution of a sentence, rather

than to its validity, are properly brought under § 2241. Antonelli v. Warden, U.S.P.

Atlanta, 542 F.3d 1348, 1352 (11th Cir. 2008). However, the “saving clause” of

§ 2255 permits a federal prisoner to file a habeas petition pursuant to § 2241 if the

petitioner establishes that the remedy provided for under § 2255 is inadequate or

ineffective to test the legality of his detention. 28 U.S.C. § 2255(e); see also

McCarthan, No. 12-14989, manuscript op. at 7-8.

      We recently overruled our prior precedents regarding the saving clause and

established a new test for when prisoners can proceed under § 2241. McCarthan,


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No. 12-14989, manuscript op. at 35-36, 53. Looking to the text of the saving

clause, we determined that the only relevant consideration is whether the prisoner

would have been permitted to bring that type of claim in a § 2255 motion. Id. at

17-35. If so, the § 2255 remedy is adequate and effective, even if the specific

claim would have been foreclosed by circuit precedent or otherwise subject to

some procedural bar or time limitation. Id. at 19-22. A § 2255 motion is

inadequate or ineffective to test the legality of a prisoner’s detention under the

saving clause only in limited circumstances. Id. at 36. Those circumstances

include: (1) when raising claims challenging the execution of the sentence, such as

the deprivation of good-time credits or parole determinations; (2) when the

sentencing court is unavailable, such as when the sentencing court itself has been

dissolved; or (3) when practical considerations, such as multiple sentencing courts,

might prevent a petitioner from filing a motion to vacate. Id. at 35-36.

      In this case, Bernard does not satisfy the new McCarthan test for proceeding

under the saving clause. Bernard could have brought his § 2241 claims in his first

§ 2255 motion. See id. at 17-35. Although the district court dismissed his first

§ 2255 motion as untimely and Bernard currently argues that circuit precedent

previously foreclosed his claim, those circumstances did not prevent Bernard from

testing the legality of his detention using § 2255. See id. at 19-22. Moreover,

Bernard does not challenge the execution of his sentence, his sentencing court is


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not unavailable, and practical considerations will not prevent him from filing a

§ 2255 motion in the Eastern District of New York. Id. at 35-36. Indeed, Bernard

has already filed two such motions in that court.

      AFFIRMED.




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