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                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-12720
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 1:14-cv-21396-JAL



DANYEL D. LAWSTON,

                                                          Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

                      ________________________

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

                            (March 10, 2015)

Before MARTIN, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM:
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      Danyel D. Lawston, a federal prisoner proceeding pro se, appeals the district

court’s dismissal of his 28 U.S.C. § 2241 petition for a writ of habeas corpus. By

adopting a magistrate judge’s Report and Recommendation (R&R), the district

court dismissed Lawston’s sentencing-error claim. In dismissing the claim, the

district court found that it lacked jurisdiction to consider Lawston’s petition

because it was, in substance, a successive 28 U.S.C. § 2255 motion to vacate. On

appeal, Lawston argues that his claim, based on Alleyne v. United States, 570 U.S.

___, 133 S. Ct. 2151 (2013), could be brought in a § 2241 petition under the

savings clause of § 2255(e). Lawston also argues that the district court failed to

give him sufficient time to file objections to the R&R, as he had no knowledge of

the R&R’s existence until the district court’s order adopting it was sent to him.

                                            I.

      Lawston first challenges the district court’s dismissal of his petition for lack

of subject-matter jurisdiction. We review de novo whether a prisoner may bring a

§ 2241 petition under the savings clause of § 2255(e). Bryant v. Warden, FCC

Coleman-Medium, 738 F.3d 1253, 1262 (11th Cir. 2013). The question of whether

the savings clause applies is a threshold jurisdictional issue, and the petitioner

bears the burden of demonstrating that § 2255 was “inadequate or ineffective to

test the legality of his detention.” Id. (citation omitted).




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      In 2006, Lawston was indicted on one count of conspiracy to possess

cocaine with intent to distribute, in violation 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C),

and 846. The statutory maximum sentence for a conviction under § 841(b)(1)(C)

is ordinarily 20 years. However, the government filed a notice under 21 U.S.C. §

851 that it intended to use Lawston’s four prior convictions for cocaine possession

to seek an enhanced 30-year statutory-maximum sentence. A jury found Lawston

guilty, and the court sentenced him to 262-months imprisonment. Lawston raised

several claims in an October 2008 § 2255 motion, all of which were denied.

      In the petition now before us, Lawston claims for the first time that Alleyne

prohibits the statutory-maximum enhancement he received. Lawston’s claim

cannot succeed because Alleyne does not apply retroactively, and a second or

successive habeas petition is allowed only for “newly discovered evidence” or “a

new rule of constitutional law, made retroactive to cases on collateral review by

the Supreme Court . . . .” § 2255(h)(2); see also Bryant, 738 F.3d at 1274. In

Alleyne, the Supreme Court held that any fact that aggravates the legally

prescribed range of allowable sentences, including a fact that increases the

statutory minimum, is an element of the offense that must be submitted to the jury

and found beyond a reasonable doubt. 570 U.S. at ___, 133 S. Ct. at 2162–63. Yet

this Court has held that Alleyne does not apply retroactively on collateral review

for purposes of a § 2241 petition filed pursuant to the savings clause. Jeanty v.


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Warden, FCI-Miami, 757 F.3d 1283, 1285 (11th Cir. 2014) (per curiam). The

district court properly concluded that Lawston’s sentencing claim under Alleyne

could not be brought under the savings clause.

      Because the district court lacked jurisdiction to consider Lawston’s petition

under § 2241, it properly considered Lawston’s challenge to the legality of his

detention under § 2255. See Bryant, 738 F.3d at 1256. Because Lawston had

already filed a § 2255 motion that was decided on its merits, the district court

properly concluded that this petition was a second or successive § 2255 motion, for

which Lawston needed prior approval from this Court. See 28 U.S.C.

§§ 2244(b)(3)(A), 2255(h). Lawston did not receive prior approval to file a second

or successive § 2255 motion, so the district court was right to dismiss his petition

for lack of jurisdiction.

                                         II.

      Lawston next claims that he never received a copy of the magistrate judge’s

R&R, as was required by the Federal Rules of Civil Procedure. As a result, the

district court did not review the case with Lawston’s objections in mind, which he

says caused prejudice. We cannot agree.

      When a magistrate judge issues an R&R, the clerk of court must mail a copy

of the R&R to each party. 28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ.

P. 72(b)(1). Parties may object to the proposed factual findings and


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recommendations within fourteen days of being served. § 636(b); Fed. R. Civ. P.

72(b)(2). This Court applies a harmless error standard to claims that the district

court did not provide sufficient time to object to an R&R denying habeas relief.

See Braxton v. Estelle, 641 F.2d 392, 397 (5th Cir. 1981) (per curiam) (holding

that any error resulting from inadequate service was harmless where none of the

appellant’s arguments resulted from a factual dispute and the district court “could

assess the merits of the petition from its face” (quotation omitted)).1

       Even if we were to assume that the district court did not give Lawston the

proper opportunity to object, that error was harmless. Lawston raises no factual

objections to the R&R on appeal. Instead, he challenges only the district court’s

legal conclusion that it lacked jurisdiction to consider his § 2241 petition via

§ 2255(e)’s savings clause. We review de novo the district court’s legal

conclusions, regardless of whether Lawston filed a timely objection to the R&R.

Monroe v. Thigpen, 932 F.2d 1437, 1440 (11th Cir. 1991). Thus, the standard of

review does not change. The district court here conducted an independent review

of the R&R and the record and was able to decide the merits of the petition from its

face. Lawston was not harmed because, as discussed above, he cannot raise an

Alleyne claim in a § 2241 petition brought under the savings clause.


1
  In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
Id. at 1209.
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We affirm the district court’s dismissal of Lawston’s § 2241 petition.

AFFIRMED.




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