              Case: 12-12866     Date Filed: 02/13/2013   Page: 1 of 6

                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 12-12866
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 2:11-cv-00158-LGW-JEG


RAY BENNETT,
                                                            Petitioner - Appellant,

                                       versus

WARDEN, FCI JESUP,

                                                            Respondent - Appellee.

                           ________________________

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

                                (February 13, 2013)

Before HULL, JORDAN and KRAVITCH, Circuit Judges.

PER CURIAM:

      Ray Bennett, 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.

After careful review, we conclude Bennett has not shown his petition satisfies the
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requirements of the savings clause of 28 U.S.C. § 2255(e), and we therefore

affirm. 1

       A jury convicted Bennett in 1991 of conspiracy to distribute and possession

with intent to distribute crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and

846. Before sentencing, the government filed an information indicating that it

would seek a mandatory life sentence based upon Bennett’s prior state drug

convictions. After argument on the issue, the district court found Bennett was

subject to a mandatory life sentence under the version of § 841(b)(1)(A) of the

Controlled Substances Act (CSA) in place at the time. See 21 U.S.C

§ 841(b)(1)(A) (1990). Bennett appealed, arguing the two Georgia convictions

upon which his sentence was predicated did not qualify him for the mandatory

enhancement. United States v. Hansley, 54 F.3d 709, 716-17 (11th Cir. 1995). But

we affirmed, holding that, “under the plain language” of the CSA in place when

Bennett was convicted and sentenced, Bennett’s prior state convictions were

“‘felony drug offense[s]’” subjecting him to mandatory life imprisonment. Id. at

717-18 (quoting 28 U.S.C. § 841(b)(1)(A) (1990)).



1
 Bennett also argues his 1981 conviction should not have been counted against him because,
under Georgia’s First Offender Act, he served a term of probation and his conviction was
expunged. Similarly, he argues his 1989 conviction should not have contributed to his enhanced
sentence because it was not final. These claims, however, do not provide an appropriate basis
for § 2241 habeas relief because “the savings clause does not cover sentence claims that could
have been raised in earlier proceedings.” Gilbert v. United States, 640 F.3d 1293, 1295 (11th
Cir. 2011) (en banc), cert. denied, 132 S. Ct. 1001 (2012).
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      Bennett filed a 28 U.S.C. § 2255 motion in 2001, raising a claim based upon

Apprendi v. New Jersey, 530 U.S. 466 (2000), that his mandatory life sentence

violated the Fifth and Sixth Amendments because neither the drug quantity

attributable to him nor his prior convictions were in the indictment or proved to the

jury. The district court denied that motion because Apprendi was not retroactively

applicable to cases on collateral review. We denied Bennett a certificate of

appealability, and the Supreme Court denied Bennett’s petition for a writ of

certiorari. Bennett v. United States, 536 U.S. 915 (2002); see In re Joshua, 224

F.3d 1281, 1283 (11th Cir. 2000) (holding the Supreme Court had not made

Apprendi retroactively applicable to cases on collateral review). Subsequently,

Bennett sought leave to file a successive § 2255 motion, but we denied his

application.

      In September 2011, Bennett petitioned for a writ of habeas corpus. Rather

than seeking again to file a successive § 2255 application as would otherwise have

been required under 28 U.S.C. § 2244(b)(3)(A), Bennett styled his application as a

§ 2241 petition under § 2255(e)’s savings clause. In his petition, Bennett argued

that recent Supreme Court cases had made clear that his two state convictions were

not appropriate predicates for a mandatory life sentence, in addition to reiterating a




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species of the Apprendi claim he made in his previous § 2255 motion.2 The

district court dismissed Bennett’s petition, finding the savings clause did not apply

to his claims. This is Bennett’s appeal.

       “The availability of habeas relief under [28] U.S.C. § 2241 is a question of

law that we review de novo.” Dohrmann v. United States, 442 F.3d 1279, 1280

(11th Cir. 2006). “Typically, collateral attacks on the validity of a federal sentence

must be brought under § 2255.” Darby v. Hawk-Sawyer, 405 F.3d 942, 944-45

(11th Cir. 2005). Under certain circumstances, however, § 2255(e)’s savings

clause permits a federal prisoner to file a § 2241 habeas petition if the remedy

available under § 2255 is “inadequate or ineffective to test the legality of his

detention.” 28 U.S.C. § 2255(e). “The savings clause only applies to ‘open a

portal’ to a § 2241 proceeding when (1) the ‘claim is based upon a retroactively

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

establishes the petitioner was convicted for a non-existent offense; and, (3) circuit

law squarely foreclosed such a claim at the time it otherwise should have been

raised.’” Darby, 405 F.3d at 945 (quoting Wofford v. Scott, 177 F.3d 1236, 1244

(11th Cir.1999)). If a petition does not satisfy the first prong of this analysis, then


2
 To the extent Bennett reasserts his claims that a jury did not decide the quantity of drugs
attributable to him or the fact of his prior state convictions, that claim merely restates the
arguments he raised in his § 2255 motion, which were rejected and Bennett did not appeal. We
have no occasion to reconsider them in this appeal. See Dohrmann v. United States, 442 F.3d
1279, 1281-82 (11th Cir. 2006) (holding that Apprendi does not apply retroactively in either a
§ 2241 or a § 2255 proceeding).
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the savings clause does not permit a § 2241 petition and we need not address the

other requirements. Flint v. Jordan, 514 F.3d 1165, 1168 (11th Cir. 2008).

Further, if a petitioner “is actually seeking an extension of the Supreme Court’s

decision,” then his claim is not “based upon a retroactively applicable Supreme

Court decision,” and the savings clause does not permit him to seek relief under

§ 2241. Id. at 1167-68.

      Bennett chiefly contends several recent Supreme Court decisions make clear

that his state convictions were not for the kinds of “felony drug offense[s]” under

the CSA that would qualify him for a mandatory life sentence. Specifically, he

says the Supreme Court’s decisions in Lopez v. Gonzalez, 549 U.S. 47 (2006),

Burgess v. United States, 553 U.S. 124 (2008), United States v. Rodriquez, 553

U.S. 377 (2008), and Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), form

the basis of his claim that his Georgia convictions for simple possession do not

satisfy the CSA’s definition.

      The problem for Bennett with each of those decisions is that none dealt with

the definition of “felony drug offense” under § 841(b)(1)(A) of the CSA as it

existed when Bennett was convicted and sentenced. Carachuri-Rosendo addressed

the term “aggravated felony” under the Immigration and Nationality Act (INA), 8

U.S.C. § 1229b(a)(3), which involved interpretation of the present-day definition

of a felony under the CSA. 130 S. Ct. at 2589-90. Similarly, Lopez dealt with the


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same definition in the INA and, in so doing, interpreted what conduct would be

punishable as a federal felony under the CSA. 549 U.S. at 60. The Court in

Rodriquez interpreted language in the Armed Career Criminal Act, 18 U.S.C.

§ 924(e). 553 U.S. at 381-82. Finally, although Burgess did interpret the meaning

of “felony drug offense” in the CSA, it interpreted the subsequently amended

definition in 21 U.S.C. § 802(44). 553 U.S. at 127. And, as we explained in

Bennett’s direct appeal, when Congress amended the CSA in 1994, it altered the

definition of a “felony drug offense.” Hansley, 54 F.3d at 718 n.7. 3

       Because no decision upon which Bennett bases his claim interprets the

statute under which he was convicted and sentenced, we could only find one of

those decisions to be applicable to his sentence by extension. This we may not do.

Flint, 514 F.3d at 1167-68. As a result, Bennett’s claims do not satisfy the first

prerequisite to relief under the savings clause. Consequently, the district court did

not err in dismissing Bennett’s § 2241 petition. Id. at 1168.

       AFFIRMED.


3
  Bennett contends he is entitled to review based upon the amended definition of “felony drug
offense.” But “[t]he general rule is that a defendant should be sentenced under the law in effect
at the time of sentencing,” unless doing so would violate the ex post facto clause, in which case
an earlier version of the law should be applied. United States v. Grimes, 142 F.3d 1342, 1351
(11th Cir. 1998). There is no authority to support Bennett’s argument that he should have been
sentenced based upon a version of the statute enacted years later. And even if he were correct
that we should have reviewed his sentence on direct appeal under the amended statute, that claim
would not be cognizable as a § 2241 petition under the savings clause for the same reason that
we reject Bennett’s other claims, namely because it is not based upon an on-point retroactively
applicable Supreme Court decision. See Flint, 514 F.3d at 1167-68.
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