            Case: 14-13417   Date Filed: 04/06/2015   Page: 1 of 6


                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-13417
                         Non-Argument Calendar
                       ________________________

                    D.C. Docket No. 1:14-cv-21586-BB



NELSON CARTAGENA-MERCED,

                                                      Petitioner - Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                      Respondent - Appellee.

                       ________________________

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

                              (April 6, 2015)

Before JULIE CARNES, JILL PRYOR and FAY, Circuit Judges.

PER CURIAM:
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      Nelson Cartagena-Merced, 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, which relied on the Supreme Court’s recent decision in Alleyne

v. United States, 133 S. Ct. 2151 (2013). On appeal, Mr. Cartagena-Merced

disputes the district court’s conclusion that he had not satisfied 28 U.S.C.

§ 2255(e)’s “savings clause” and therefore could not challenge the validity of his

sentence under § 2241. Specifically, he asserts that, contrary to the district court’s

decision, Alleyne represented a new rule of constitutional law that applies

retroactively to cases on collateral review. For the reasons set forth below, we

affirm.

                                           I.

      Mr. Cartagena-Merced was convicted in 1998 of, among other charges,

using a firearm in relation to a crime of violence in violation of 18 U.S.C.

§ 924(c)(1). Neither the indictment nor the jury’s verdict specified the type of

firearm used, but at sentencing the government introduced evidence that the

firearm in question was a semiautomatic weapon. For this reason, the district court

increased the statutory mandatory minimum sentence on the § 924(c)(1) violation

from 5 to 10 years. Mr. Cartagena-Merced’s convictions and sentences were

upheld on direct appeal. See United States v. Mojica-Baez, 229 F.3d 292, 313 (1st

Cir. 2000). The following year, he filed a § 2255 motion to vacate in which he


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raised several claims of ineffective assistance of counsel. That motion was denied

in 2004, and Mr. Cartagena-Merced did not appeal. In 2009, Mr. Cartagena-

Merced filed his first § 2241 petition, raising new claims of ineffective assistance.

The district court dismissed that petition, concluding it was, in substance, a

successive § 2255 motion (which generally is not permitted) and was not otherwise

properly filed under the savings clause of § 2255(e).

      In 2013, the Supreme Court held that any aggravating fact that increases the

penalty for a crime beyond the prescribed statutory minimum must be submitted to

a jury and proved beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2162-63. In

other words, under Alleyne the fact that an individual used a semiautomatic

weapon in relation to a crime of violence must be submitted to a jury and proved

beyond a reasonable doubt. See id.; 18 U.S.C. § 924(c)(1)(B) (describing

increased penalties for short-barreled rifles and shotguns, semiautomatic weapons,

machine guns, and “destructive devices”). The following year, Mr. Cartagena-

Merced filed the instant § 2241 petition in which he asserted that Alleyne provided

a basis for his new petition and for relief. The district court dismissed the petition

as successive. Mr. Cartagena-Merced now appeals.

                                          II.

      Typically, a prisoner must assert any collateral attacks on the validity of his

federal conviction or sentence via 28 U.S.C. § 2255. Sawyer v. Holder, 326 F.3d


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1363, 1365 (11th Cir. 2003). Title 28 U.S.C. § 2241 generally is reserved for

challenges to the execution, rather than validity, of a sentence. Antonelli v.

Warden, U.S.P. Atlanta, 542 F.3d 1348, 1352 (11th Cir. 2008). Further, “if a

federal prisoner . . . has already been denied [§ 2255] relief,” then a § 2241 petition

that attacks the validity of a sentence “shall not be entertained” unless it “appears

that the remedy by [§ 2255] motion is inadequate or ineffective to test the legality

of his detention.” 28 U.S.C. § 2255(e). This exception to § 2255(e)’s bar on a §

2241 petition, which we refer to as the “savings clause,” places the burden on the

petitioner to establish that the remedy provided by § 2255 is “inadequate or

ineffective . . . .” Id. Because this savings clause is jurisdictional, a prisoner

petitioning the district court under § 2241 must make this showing before the

district court may take jurisdiction of the case. Williams v. Warden, Fed. Bureau

of Prisons, 713 F.3d 1332, 1337-40 (11th Cir. 2013), cert. denied, 135 S. Ct. 52

(2014).

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

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

1253, 1262 (11th Cir. 2013). And we recognize that the statutory bar on second

and successive § 2255 petitions, standing alone, cannot render § 2255’s remedy

inadequate or ineffective under the savings clause. Gilbert v. United States, 640

F.3d 1293, 1308 (11th Cir. 2011) (en banc). Rather, a petitioner may employ the


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savings clause properly to file a § 2241 petition where he shows that (1)

throughout his sentencing, direct appeal, and original § 2255 proceeding his claim

squarely was foreclosed by binding circuit precedent; (2) his current claim is based

on a Supreme Court decision that overturned that formerly binding precedent; (3)

the Supreme Court’s decision is retroactively applicable on collateral review; (4) as

result of the new rule’s application, his sentence exceeds the applicable statutory

maximum penalties; and (5) the savings clause of § 2255 reaches the petitioner’s

claim. See Bryant, 738 F.3d at 1274.

                                         III.

      We conclude the district court did not err in dismissing Mr. Cartagena-

Merced’s § 2241 petition. The claim he raises in his petition addresses the validity

of his sentence, not its execution, and therefore falls within the scope of § 2255

rather than § 2241. See Sawyer, 326 F.3d at 1365. Because Mr. Cartagena-Merced

previously had filed a § 2255 motion that was denied, he cannot merely circumvent

the statutory restriction on successive § 2255 motions by filing a petition under

§ 2241. See Gilbert, 640 F.3d at 1308. To proceed under § 2241, then, Mr.

Cartagena-Merced must show by meeting the elements set forth in Bryant that

§ 2255 was “inadequate or ineffective” to challenge the legality of his detention.

28 U.S.C. § 2255(e); Bryant, 738 F.3d at 1274. He has not done so here.

Although he relies upon the Supreme Court’s decision in Alleyne as a ground for


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relief, this Court previously has concluded Alleyne is not retroactively applicable

on collateral review. See Jeanty v. Warden, FCI-Miami, 757 F.3d 1283, 1285

(11th Cir. 2014). Thus, because Jeanty forecloses Mr. Cartagena-Merced’s ability

to meet the third element of Bryant, we find no reversible error in the district

court’s dismissal.1

AFFIRMED.




1
 Because we conclude Jeanty forecloses Mr. Cartagena-Merced’s petition, we do not address
any of the government’s alternative arguments for affirming the judgment of the district court.
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