                    Case: 11-14997         Date Filed: 07/19/2012   Page: 1 of 5

                                                                       [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-14997
                                        Non-Argument Calendar
                                      ________________________

                            D.C. Docket No. 5:10-cv-00398-JDW-TBS



JIMMY LEE FIELDS,

lllllllllllllllllllllllllllllllllllllll                             lPetitioner - Appellant,

                                                versus

WARDEN, FCC COLEMAN - USP 1,

llllllllllllllllllllllllllllllllllllllll                            Respondent - Appellee.


                                     ________________________

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

                                            (July 19, 2012)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
              Case: 11-14997     Date Filed: 07/19/2012    Page: 2 of 5

      Jimmy Lee Fields, a federal prisoner proceeding pro se, appeals the district

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

district court dismissed Fields’s petition because he had previously been denied

relief on a 28 U.S.C. § 2255 motion, and he had not demonstrated that he was

entitled to pursue his claims under 28 U.S.C. § 2255(e)’s savings clause. Fields is

currently serving a life sentence for conspiracy to possess with intent to distribute

cocaine and cocaine base.

      We review de novo the availability of habeas relief under 28 U.S.C. § 2241.

Cook v. Wiley, 208 F.3d 1314, 1317 (11th Cir. 2000). A federal prisoner must

ordinarily bring any collateral attacks on the validity of his conviction or sentence

under 28 U.S.C. § 2255. Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir. 2003).

However, under the limited circumstances stated in § 2255(e)’s savings clause, a

federal prisoner may file a habeas petition pursuant to § 2241. See 28 U.S.C. §§

2241(a), 2255(e). Relief under § 2241 is only available if the prisoner can show

that a § 2255 proceeding is “inadequate or ineffective to test the legality of his

detention.” 28 U.S.C. § 2255(e); McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir.

1979) (per curiam). The statutory bar that prohibits a prisoner from filing a

second or successive § 2255 motion without prior authorization is not a sufficient

ground to show that § 2255’s remedy is inadequate or ineffective for the purposes

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of the savings clause. Gilbert v. United States, 640 F.3d 1293, 1308 (11th Cir.

2011) (en banc), cert. denied, 132 S. Ct. 1001 (2012).

        We have held that § 2255 remedies may be considered inadequate when (1)

the petitioner’s claim is based on a retroactively applicable Supreme Court

decision; (2) that decision’s holding established that the prisoner was convicted of

a “nonexistent offense”; and (3) circuit law foreclosed the prisoner from bringing

his claim at the earlier time it should have been raised—at trial, appeal, or in the

first § 2255 motion. Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999); but

see Gilbert, 640 F.3d at 1319. A prisoner must establish all three prongs of this

test before we will consider whether the petitioner can also establish actual

innocence of the crime for which he has been convicted. Wofford, 177 F.3d at

1244.

        Fields argues that the Supreme Court’s decisions in DePierre v. United

States, 131 S. Ct. 2225 (2011) and Carachuri-Rosendo v. Holder, 130 S. Ct. 2577

(2010) are retroactive and establish that he was convicted of a nonexistent offense.

In DePierre, the Supreme Court held that the term “cocaine base,” as used in 21

U.S.C. § 841(b)(1), refers to not just crack cocaine, but any cocaine in its

chemically basic form. 131 S. Ct. at 2227–28. In Carachuri-Rosendo, the

Supreme Court held—in the context of an immigration proceeding—that “when a

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defendant has been convicted of a simple possession offense that has not been

enhanced based on the fact of a prior conviction, he has not been ‘convicted’

under [8 U.S.C.] § 1229b(a)(3) of a ‘felony punishable’ as such ‘under the

Controlled Substances Act,’ 18 U.S.C. § 924(c)(2).” 130 S. Ct. at 2589.

      Here, the indictment against Fields alleged that he distributed “cocaine

base” and the evidence showed that Fields’s offense had involved crack cocaine.

Fields was convicted of conspiracy to possess with intent to distribute cocaine and

cocaine base, and he received a sentence of life imprisonment because he had been

convicted of two prior drug violations. Fields has not shown that DePierre and

Carachuri-Rosendo are retroactive, nor has he demonstrated that either applies to

the facts of his case to demonstrate that he was convicted of a “nonexistent

offense.”

      Fields also argues that the Fair Sentencing Act (“FSA”) applies to him. The

Supreme Court recently held that the FSA applies to those who committed acts

prior to the passage of the FSA, but were sentenced following the August 3, 2010

effective date of the FSA. See Dorsey v. United States, Nos. 11-5683, 11-5721,

2012 WL 2344463, at *15 (U.S. June 21, 2012). However, Fields was sentenced

prior to August 3, 2010, and thus the FSA does not retroactively apply to him.

      Because Fields has failed to demonstrate that he meets the criteria of the

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savings clause of § 2255(e), he cannot proceed with his claims under a § 2241

petition.

      AFFIRMED.




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