           Case: 13-13992   Date Filed: 10/23/2014   Page: 1 of 8


                                                        [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-13992
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 1:13-cv-23012-UU



DEWAYNE E. DAVIS,

                                                          Petitioner-Appellant,

                                  versus

WARDEN,

                                                         Respondent-Appellee.

                      ________________________

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

                            (October 23, 2014)

Before WILSON, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 13-13992     Date Filed: 10/23/2014    Page: 2 of 8


      Dewayne Davis, a pro se federal prisoner, 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 recent Supreme Court decision in Alleyne v. United

States, 570 U.S. __, 133 S. Ct. 2151 (2013), to argue that his sentence was imposed

in violation of the Sixth Amendment. On appeal, Davis argues that the district

court erred by denying his § 2241 petition on the ground that he had not satisfied

28 U.S.C. § 2255(e)’s “savings clause” because Alleyne represented a new rule of

constitutional law that applies retroactively to cases on collateral review. He

asserts that Alleyne is not an extension of Apprendi v. New Jersey, 530 U.S. 466,

120 S. Ct. 2348 (2000), and it is retroactively applicable because it represents a

watershed rule of criminal procedure.

      The availability of habeas relief under § 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).

      The savings clause of § 2255, however, permits a federal prisoner, under

very limited circumstances, to file a habeas petition that attacks the validity of his


                                           2
               Case: 13-13992     Date Filed: 10/23/2014    Page: 3 of 8


convictions and sentences 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 provided under § 2255 is “inadequate or ineffective to test the legality of

his detention.” 28 U.S.C. § 2255(e). We recently 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,

1337–40 (11th Cir. 2013).

      When a prisoner previously has filed a § 2255 motion to vacate, he must

apply for and receive permission from us before filing a successive § 2255 motion.

28 U.S.C. §§ 2244(b)(3)(A), 2255(h). We have held that such restrictions on

successive § 2255 motions, standing alone, do not render that section “inadequate

or ineffective” within the meaning of the savings clause. Gilbert v. United States,

640 F.3d 1293, 1308 (11th Cir. 2011) (en banc) (“Gilbert II”). Consequently, a

petitioner who has filed a previous § 2255 motion that has been denied may not

circumvent the prohibition on unauthorized successive § 2255 filings simply by

filing a petition under § 2241. See id.

      Although the scope of the § 2255(e) savings clause has not been fully

defined, we have noted that a petitioner meets the requirements of the savings


                                           3
               Case: 13-13992     Date Filed: 10/23/2014    Page: 4 of 8


clause when: (1) the petitioner’s claim is based on a retroactively applicable

Supreme Court decision; (2) the holding of that Supreme Court decision

establishes that the petitioner was convicted of a non-existent offense; and

(3) circuit law squarely foreclosed such a claim at the time it otherwise should

have been raised at the petitioner’s trial, on appeal, or in his first § 2255 motion.

Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999); but see Turner v. Warden

Coleman FCI (Medium), 709 F.3d 1328, 1333–34 (11th Cir. 2013), cert. denied,

133 S. Ct. 2873 (2013) (describing the three-part test in Wofford as “dicta” and

noting that we have retreated from that test in Gilbert II). In Williams, we

interpreted Wofford’s holding as establishing two necessary conditions for a

sentencing claim to be viable under the savings clause. Williams, 713 F.3d

at 1343. First, the claim must be based on a retroactively applicable Supreme

Court decision. Id. Second, the Supreme Court “must have overturned a circuit

precedent that squarely resolved the claim so that the petitioner had no genuine

opportunity to raise it at trial, on appeal, or in his first § 2255 motion.” Id. As a

result, a petitioner may not argue the merits of his claim until he has “open[ed] the

portal” to a § 2241 proceeding by demonstrating that the savings clause applies to

his claim. Wofford, 177 F.3d at 1244 n.3.

      In our recent decision in Bryant v. Warden, FCC Coleman-Medium,

738 F.3d 1253 (11th Cir. 2013), we addressed the question of whether a petitioner


                                           4
              Case: 13-13992     Date Filed: 10/23/2014   Page: 5 of 8


can use the savings clause to “open the portal” to § 2241 where an erroneous

application of the Armed Career Criminal Act (ACCA) resulted in a sentence that

exceeded the statutory maximum. 738 F.3d 1253, 1262 (11th Cir. 2013). In that

case, Bryant had filed a § 2241 petition pursuant to § 2255(e)’s savings clause,

arguing that his 235-month sentence for an 18 U.S.C. § 922(g) felon-in-possession

conviction exceeded the 10-year statutory maximum penalty under 18 U.S.C.

§ 924(a). Id. at 1260–61. Specifically, he had contended that, under Begay v.

United States, 553 U.S. 137, 128 S. Ct. 1581 (2008), United States v. Archer, 531

F.3d 1347 (11th Cir. 2008), and United States v. Canty, 570 F.3d 1251 (11th Cir.

2009), his prior conviction for a concealed firearm offense under Florida law no

longer was considered a “violent felony” for purposes of the ACCA, such that he

did not have the three predicate convictions necessary to increase his maximum

penalty from ten years to life imprisonment. Bryant, 738 F.3d at 1257; see 18

U.S.C. § 924(e).

      Based on a synthesis of Wofford, Gilbert II, and Williams, we held that, in

order to show that his prior § 2255 motion had been “inadequate or ineffective to

test the legality of his detention,” Bryant had to make a five-part showing.

Bryant, 738 F.3d at 1274. He had to establish that: (1) our precedent foreclosed

the claim raised in his § 2241 petition throughout sentencing, direct appeal, and his

first § 2255 proceeding; (2) the Supreme Court overturned that binding precedent


                                          5
              Case: 13-13992     Date Filed: 10/23/2014    Page: 6 of 8


after his initial § 2255 proceeding; (3) the Supreme Court decision applied

retroactively on collateral review; (4) as a result of that Supreme Court decision

applying retroactively, the petitioner’s current sentence exceeded the statutory

maximum; and (5) § 2255(e)’s savings clause reached his claim. Id.

      In determining whether a new rule applies retroactively at step three of the

Bryant test, new substantive rules generally apply retroactively, and the rule

announced in a Supreme Court decision is substantive if it alters the range of

conduct or the class of persons that the law punishes. Schriro v. Summerlin,

542 U.S. 348, 351–53, 124 S. Ct. 2519, 2522–23 (2004). By contrast, a rule is

procedural if it regulates only the manner of determining the defendant’s

culpability, and new rules of criminal procedure generally are not retroactively

applicable on collateral review unless they fall within one of two exceptions. Id. at

352–53, 124 S. Ct. at 2523; Teague v. Lane, 489 U.S. 288, 310–11, 109 S. Ct.

1060, 1075–76 (1989). First, such rules apply retroactively if they place “certain

kinds of primary, private individual conduct beyond the power of the criminal

law-making authority to proscribe.” Teague, 489 U.S. at 311, 109 S. Ct. at 1075

(internal quotation marks omitted). Second, they will apply retroactively if they

require the observance of “those procedures that . . . are implicit in the concept of

ordered liberty,” so-called “watershed rules of criminal procedure.” Id. at 311, 109

S. Ct. at 1075–76 (internal quotation marks omitted) (ellipsis in original).


                                           6
              Case: 13-13992     Date Filed: 10/23/2014   Page: 7 of 8


      In Apprendi, the Supreme Court held that, “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362–63. In Alleyne, the

Supreme Court expanded Apprendi by holding, in a direct appeal, that under the

Sixth Amendment, “facts that increase mandatory minimum sentences must be

submitted to the jury.” 570 U.S. at __, 133 S. Ct. at 2163 (concluding that a jury

must find beyond a reasonable doubt that the defendant “brandished” a firearm

within the meaning of 18 U.S.C. § 924(c)(1)(A)(ii) before an enhanced seven-year

mandatory-minimum sentence may apply). The Court concluded that the

distinction between facts that increase the statutory maximum and facts that

increase only the mandatory minimum was inconsistent with Apprendi and the

Sixth Amendment. Id. at __, 133 S. Ct. at 2155.

      Recently, in Jeanty v. Warden, FCI-Miami, 757 F.3d 1283 (11th Cir. 2014)

(per curiam), we addressed whether the district court erred in denying Jeanty’s

§ 2241 petition for a writ of habeas corpus, which relied on Alleyne. In making our

determination that Jeanty failed to meet the third Bryant requirement, we explicitly

held that Alleyne does not apply retroactively on collateral review. Id. at 1285.

We explained that neither Alleyne itself nor any later Supreme Court decision has

held Alleyne to be retroactive. Id. Alleyne was an application of the rule


                                          7
               Case: 13-13992     Date Filed: 10/23/2014     Page: 8 of 8


established in Apprendi, and we have repeatedly held that that rule does not apply

retroactively on collateral review. Id. at 1285–86. Finally, every other circuit to

address the issue in a published decision has concluded that Alleyne is not

retroactively applicable on collateral review. Id. at 1286.

      In light of our decision in Jeanty, Davis cannot use § 2255(e)’s savings

clause to collaterally challenge his sentence under § 2241 because the rule

established in Alleyne is not retroactively applicable on collateral review.

Therefore, Davis has not shown that § 2255 was “inadequate or ineffective” to test

the legality of his detention, and the district court did not have jurisdiction to

review his § 2241 petition brought pursuant to § 2255(e).

      Upon review of the entire record on appeal, and after consideration of the

parties’ appellate briefs, we affirm.

      AFFIRMED.




                                            8
