           Case: 13-13535   Date Filed: 08/14/2014   Page: 1 of 6


                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-13535
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 5:12-cv-00323-JDW-PRL


MICHAEL JEROME FILES,

                                                          Petitioner-Appellant,

                                  versus


FCC COLEMAN – USP I WARDEN,

                                                         Respondent-Appellee.

                      ________________________

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

                            (August 14, 2014)

Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Michael Jerome Files, 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, and its denial of his motion for reconsideration of that dismissal. In Files’s

petition, he asserted that 28 U.S.C. § 2255 was inadequate and ineffective to

challenge the legality of his detention because he was foreclosed from obtaining

relief in a second or successive motion based on his argument that DePierre 1

announced a new statutory interpretation of law. His underlying claim was that the

district court imposed enhanced statutory penalties on him under 21 U.S.C.

§ 841(b) without first having the jury determine a drug type and amount.

      The district court dismissed his petition, concluding that Files’s claim did

not satisfy the savings clause of § 2255(e). Files filed a motion for reconsideration

of the dismissal, which the district court denied.

      On appeal, Files argues that DePierre is retroactively applicable because it

announced a new substantive rule by narrowing the interpretation of 21 U.S.C.

§ 841(b)(1). He asserts that he was previously foreclosed by United States v.

Hester, 199 F.3d 1287 (11th Cir. 2000), from raising his argument that the type

and amount of drugs are elements of the offense. However, he contends that

Hester has since been overturned by DePierre. He submits that, based on our

holding in Williams v. Warden, 713 F.3d 1332 (11th Cir. 2013), he was not

      1
          DePierre v. United States, 564 U.S. __, 131 S.Ct. 2225, 180 L.Ed.2d 114 (2011).


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required to show that he was actually innocent of his offenses as articulated in

Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999). Files does not raise any

arguments specific to the denial of his motion for reconsideration.

      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). We review the district

court’s denial of a motion for reconsideration for abuse of discretion. Farris v.

United States, 333 F.3d 1211, 1216 (11th Cir. 2003).

      A federal prisoner must typically bring any collateral attack 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). Once he has filed his initial § 2255 motion, he is

barred from making second and successive motions except where his claim relies

upon the existence of newly discovered evidence or a new rule of retroactively

applicable constitutional law. See 28 U.S.C. § 2255(h); United States v. Diaz-

Clark, 292 F.3d 1310, 1316 (11th Cir. 2002). In addition, pursuant to § 2255(e),

known as the “savings clause,” a prisoner may file a § 2241 petition if the § 2255

remedy “is inadequate or ineffective to test the legality of his detention.” 28

U.S.C. § 2255(e); Bryant v. Warden, 738 F.3d 1253, 1263 (11th Cir. 2013). The

burden is on the movant to establish the inadequacy or ineffectiveness of the

§ 2255 remedy. Bryant, 738 F.3d at 1262. The savings clause is a jurisdictional

provision that must be met in order for the claims to survive dismissal. Id. at 1271.


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      The restriction against second and successive § 2255 motions, standing

alone, cannot render § 2255’s remedy inadequate or ineffective under the savings

clause in § 2255(e). Gilbert v. United States, 640 F.3d 1293, 1308 (11th Cir. 2011)

(en banc). Rather, we have explained that a petitioner meets this burden only

where he shows that: (1) throughout his sentencing, direct appeal, and original

§ 2255 proceeding, his claim was squarely foreclosed by our binding precedent;

(2) his current claim is based on a Supreme Court decision that overturned the

precedent that had foreclosed his claim; (3) that Supreme Court decision is

retroactively applicable on collateral review; (4) as a result of the application of the

new rule, his sentences exceed the applicable statutory maximum penalties; and

(5) the savings clause reaches his pure-Begay2 error claim of illegal detention

above the statutory maximum penalty. Bryant, 738 F.3d at 1274. We explained

that a claim of illegal detention above the applicable statutory maximum penalty

was a fundamental sentencing defect within the purview of the savings clause. Id.

at 1281-84.

      In Apprendi, the Supreme Court stated 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 v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147


      2
          Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008).

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L.Ed.2d 435 (2000). We have stated that Apprendi does not apply retroactively on

collateral appeal. McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001).

However, in light of Apprendi, we have explained that the enhanced penalties in 21

U.S.C. § 841(b) cannot be applied unless the jury determines the drug type and

quantity involved in the drug conspiracy offenses. United States v. Sanders, 668

F.3d 1298, 1309 (11th Cir. 2012). In DePierre, the Supreme Court held that the

term “cocaine base,” as used in § 841(b)(1), refers to not just crack cocaine, but

any cocaine in its chemically basic form. DePierre, 564 U.S. at __, 131 S.Ct.

at 2237.

      Files has not shown that he has met the requirements of the savings clause

here. The problem for Files is that his argument regarding drug type and amount is

based on Apprendi at its core. Files has already raised this argument under

Apprendi on direct appeal, and in any event, Apprendi does not apply retroactively

on collateral appeal. See McCoy, 266 F.3d at 1258. As such, Files cannot show

that the claim he seeks to raise now was squarely foreclosed throughout his direct

appeal and original § 2255 proceeding. See Bryant, 738 F.3d at 1274. As Files’s

claim could not proceed under the savings clause, and he has failed to make any

additional argument specific to the denial of his motion for reconsideration on

appeal, the district court correctly denied his motion. Accordingly, we affirm.




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    AFFIRMED. 3




3
    Files’ motion for appointment of counsel is DENIED as moot.

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