            Case: 12-15459   Date Filed: 05/02/2014   Page: 1 of 5


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-15459
                         Non-Argument Calendar
                       ________________________

                    D.C. Docket No. 1:12-cv-20313-JLK

JORGE LUIS BENITEZ,

                                                           Petitioner-Appellant,

                                       versus

WARDEN, FCI MIAMI,

                                                         Respondent-Appellee.

                       ________________________

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

                               (May 2, 2014)

Before WILSON, HILL, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Jorge Luis Benitez appeals the district court’s dismissal of his pro se habeas

corpus petition filed pursuant to 28 U.S.C. § 2241, challenging his 1997

convictions and total 360-month sentence on drug-related charges. His petition

raises multiple grounds for relief, based on his assertion that he has new evidence

that witnesses engaged in a conspiracy to give perjured testimony during grand

jury proceedings, so as to ensure Benitez was indicted. Benitez asserts that, as a

result of the conspiracy, his indictment was illegal, the trial jury was given

improper instructions, and the government engaged in prosecutorial misconduct

when they failed to inform the court about the conspiracy.

      Prior to the instant § 2241 petition, Benitez had filed in the Southern District

of Florida a motion to vacate, set aside, or correct his sentence pursuant to 28

U.S.C. § 2255, which the court denied in 2001. In 2004, while confined in the

Middle District of Florida, Benitez filed in that court a habeas petition pursuant to

§ 2241. The court dismissed that petition with prejudice, concluding that he had

failed to invoke the “savings clause” of § 2255(e). In 2005, Benitez returned to

the Southern District of Florida to file a motion for relief from judgment pursuant

to Rule 60(b) of the Federal Rules of Civil Procedure, which again the court

denied.

      The district court correctly dismissed the instant § 2241 petition. First, the

court held that § 2241 was not an appropriate starting place for filing Benitez’s


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claims. 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

the validity of the sentence itself, are properly brought under 28 U.S.C. § 2241.

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

claims raised in Benitez’s petition did not address the execution of his sentence,

but its legality, as he contended that his convictions and sentences resulted from an

illegal indictment, improper jury instructions, and prosecutorial misconduct.

Therefore, § 2255, not § 2241 was the appropriate statutory vehicle for Benitez’s

claims.

      Construing Benitez’s petition as one under § 2255, however, gets him no

further. First, as Benitez has already filed and prosecuted an initial § 2255 motion

attacking his convictions, and that motion has been denied with prejudice, he was

required to obtain authorization from this court in order to file a second or

successive motion. See § 2244(b)(3)(A). Benitez did not do this. Therefore, the

district court correctly held that it was without authority to review his claims.

      Second, although Section § 2255(e) permits a federal prisoner attacking

custody resulting from a federally imposed sentence to file a habeas petition

pursuant to § 2241, the circumstances under which such action is appropriate are

extremely limited. See Sawyer, 326 F.3d at 1365. Under the “savings clause” of §


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2255, a court may entertain a § 2241 petition only 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). Furthermore, this “savings clause” is

jurisdictional; a petitioner must satisfy its requirement that § 2255 be “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, 1339-40

(11th Cir. 2013). Nor do these limitations themselves render § 2255 inadequate or

ineffective to afford review of a petitioner’s claims. Gilbert v. United States, 640

F.3d 1293, 1308 (11th Cir. 2011) (en banc). Consequently, a petitioner who has

filed a previous § 2255 motion and been denied may not simply file a petition

under § 2241. Id. 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 v. Scott, 177 F.3d 1236, 1245 (11th Cir. 1999);

      In two recent cases, we have discussed the requirements for successful

invocation of the savings clause. In both Williams, 713 F.3d at 1343, and Bryant v.

Warden, 738 F.3d 1253, 1274 (11th Cir. 2013), we held that a petitioner must be

able to demonstrate, inter alia, that his claim relies on a retroactively applicable

Supreme Court decision. Although neither of these cases concerned challenges to

the underlying conviction, as here, both require petitioners to “open the portal” to §

2241 review by basing their claims upon retroactively applicable Supreme Court


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decisions. We hold that this requirement extends to Benitez’s claims challenging

the validity of his conviction.

      None of the cases relied upon by Benitez in his brief on appeal qualify as

retroactively applicable Supreme Court decisions. The only Supreme Court case

relied upon in his initial petition that post-dates his conviction is Neder v.United

States, 527 U.S. 1 (1999), and this case has never been held to be retroactive to

cases on collateral review, and we decline to do so. See Teague v. Lane, 489 U.S.

288 (1989) (requiring that case either place certain primary conduct beyond

proscription or be a watershed rule of criminal procedure).

      Benitez has failed to show that his claim is based upon a retroactively

applicable Supreme Court decision. Therefore, he is not entitled to savings clause

relief from the bar to a successive § 2255 motion and he is not entitled to proceed

under § 2241. Accordingly, the district court did not have jurisdiction over his §

2241 petition, and did not err in dismissing his petition. The judgment of the

district court dismissing this case is therefore

      AFFIRMED.




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