           Case: 13-13846   Date Filed: 07/17/2014   Page: 1 of 9


                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT


                       Nos. 13-13846 & 13-13884
                        Non-Argument Calendar


                   D.C. Docket No. 1:13-cv-22629-UU



MARVIN GRIFFIN,
                                                          Petitioner-Appellant,

                                  versus

WARDEN, FCI MIAMI,
                                                         Respondent-Appellee.



                Appeals from the United States District Court for
                        the Southern District of Florida


                             (July 17, 2014)


Before HULL, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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      After his conviction by a jury in 1998, Marvin Griffin, a federal prisoner

proceeding pro se, is serving a 360-month sentence for attempting to possess with

intent to distribute six kilograms of cocaine, in violation of 21 U.S.C. §§ 841, 846.

      Griffin appeals the district court’s denial of his 28 U.S.C. § 2241 petition for

a writ of habeas corpus on the merits. After review of the record and consideration

of the parties’ briefs on appeal, we vacate and remand this case to the district court

for that court to dismiss Griffin’s § 2241 petition for lack of subject matter

jurisdiction under 28 U.S.C. § 2255(e).

               I. FACTUAL & PROCEDURAL BACKGROUND

A.    Conviction and Sentence

      In 1995, Griffin was indicted for attempting to possess cocaine with intent to

distribute, in violation of 21 U.S.C. §§ 841, 846. The indictment did not specify a

drug quantity. In 1998, a jury convicted Griffin.

      Section 841 provides different statutory penalties based on the type and

quantity of the controlled substance involved in the offense. See 21 U.S.C.

§ 841(b)(1).

      At sentencing, the district court found that Griffin’s offense involved six

kilograms of cocaine. As a result, Griffin’s statutory maximum penalty increased

from twenty years to life imprisonment, and his statutory mandatory minimum


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sentence became ten years’ incarceration. See 21 U.S.C. § 841(b)(1)(A).

However, based on his lengthy criminal history, which included prior convictions

for narcotics trafficking, Griffin was designated as a career offender pursuant to

U.S.SG. § 4B1.1. Accordingly, his guidelines sentencing range became 360

months to life.

      The district court imposed a 360-month sentence, a sentence at the low end

of the guidelines range and 240 months above the statutory mandatory minimum

penalty. This Court affirmed Griffin’s conviction and sentence on April 18, 2000.

      On direct appeal, Griffin argued that the district court erred by holding him

responsible for six kilograms of cocaine. This Court rejected that claim, stating:

             We find no error in the district court’s determination that
             Griffin was responsible for six kilograms of cocaine. We
             review a sentencing court’s drug quantity determination
             for clear error. See United States v. Beasley, 2 F.3d
             1551, 1561 (11th Cir. 1993). The record indicates that
             Griffin agreed to take and did accept all six kilograms of
             cocaine and thus it was not clear error for the court to
             hold him responsible for all six kilograms.

      The opinion does not reflect any argument from Griffin about whether the

jury or the district court should have been the ultimate fact-finder as to the drug

quantity.




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B.     First § 2255 Motion

       In January 2002, Griffin filed an original 28 U.S.C. § 2255 motion to vacate,

set aside, or correct sentence, in which he argued, inter alia, that his sentence was

invalid pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000)

(decided June 26, 2000), because the sentencing court relied on a quantity of

cocaine that was not found by the jury to increase his statutory maximum penalty.

       The district court denied the § 2255 motion as to the Apprendi claim because

Griffin was procedurally barred from raising that claim in a § 2255 motion.

C.     Motion for New Trial

       In July 2002, Griffin filed a motion for a new trial pursuant to Federal Rule

of Criminal Procedure 33, raising the same Apprendi claim. The court denied that

motion as untimely and noted that Griffin’s claim was procedurally barred because

he did not raise it at trial or on direct appeal and did not show cause or prejudice

for his failure to do so.

D.     Second § 2255 Motion

       In October 2004, Griffin filed a second § 2255 motion, which the district

court denied as an unauthorized successive collateral attack.




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E.    Initial § 2241 Petition

      On July 17, 2013, Griffin filed a 28 U.S.C. § 2241 petition, again raising his

Apprendi claim and arguing that, pursuant to the savings clause in § 2255(e),

§ 2255 was inadequate to test the legality of his detention.

      The district court denied the petition, finding that Griffin could not use

§ 2255(e)’s savings clause because the Apprendi claim was available to Griffin in

earlier proceedings and, thus, Griffin could have raised his Apprendi claim earlier.

Because Griffin could have raised his Apprendi claim in earlier proceedings, the

district court concluded that § 2255 was not inadequate or ineffective within the

meaning of the savings clause in § 2255(e).

      Although finding that Griffin’s Apprendi claim was procedurally defaulted,

the district court also noted that it was clear that Apprendi and its progeny did not

apply retroactively on collateral review anyway.

                         II. SECOND § 2241 PETITION

      On July 23, 2013, one week after he filed his Apprendi-based § 2241 petition

and one day before the district court dismissed that petition, Griffin filed the

instant Alleyne-based § 2241 petition. In the present petition, Griffin argues that

his sentence was invalid pursuant to Alleyne v. United States, 570 U.S. ___, 133 S.

Ct. 2151 (2013) (decided June 17, 2013), and that he can bring his claim in a §


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2241 petition pursuant to the savings clause in § 2255(e). Griffin argues that

Alleyne extended the Apprendi principle to facts that increased the statutory

mandatory minimum sentence, and that his sentence violated his due process rights

because it exceeded the mandatory minimum. Griffin contends that he should have

been held responsible for only one kilogram of cocaine at sentencing but the court

held him responsible for six kilograms.

       The district court sua sponte denied Griffin’s § 2241 petition, noting that

Griffin had attempted multiple times to vacate his sentence based on Apprendi, and

finding that Griffin’s present § 2241 petition was a “reiteration of the claims [the

district court] ha[d] repeatedly denied.” The district concluded that Alleyne was

not applicable because Griffin’s complaint was that the sentencing court used facts

not found by the jury to increase his maximum term of imprisonment, which is an

Apprendi claim. The district court also concluded that, in any event, “Apprendi

and its progeny, which include[d] Alleyne, [did] not apply retroactively on

collateral review.”

       Griffin timely appealed. 1




       1
        The availability of habeas relief under 28 U.S.C. § 2241 presents a question of law that
we review de novo. See Cook v. Wiley, 208 F.3d 1314, 1317 (11th Cir. 2000).


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                                    III. DISCUSSION

       Under § 2255(e)’s savings clause, a court may entertain a § 2241 petition

attacking custody resulting from a federally imposed sentence if the petitioner

establishes that the remedy provided for under § 2255 is “inadequate or ineffective

to test the legality of his detention.” 2 28 U.S.C. § 2255(e).

       The savings clause in § 2255(e) is a jurisdictional provision. Williams v.

Warden, Fed. Bureau of Prisons, 713 F.3d 1332, 1339-40 (11th Cir. 2013), petition

for cert. filed (U.S. Apr. 8, 2014) (No. 13-1221). Thus, before the district court has

jurisdiction to review a § 2241 petition, the petitioner must show that § 2255 is

“inadequate or ineffective to test the legality of his detention.” See id. A hopeful

§ 2241 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 in

§ 2255(e) applies to his claim. Wofford v. Scott, 177 F.3d 1236, 1244 n.3 (11th

Cir. 1999); see also Williams, 713 F.3d at 1339-40.




       2
         When a prisoner previously has filed a § 2255 motion to vacate, he must apply for and
receive permission from this Court before filing a successive § 2255 motion. 28 U.S.C.
§§ 2244(b)(3), 2255(h). These restrictions on successive § 2255 motions, standing alone, do not
render that section “inadequate or ineffective” within the meaning of the savings clause. Gilbert
v. United States, 640 F.3d 1293, 1308 (11th Cir. 2011) (en banc). A petitioner who has filed a
previous § 2255 motion and been denied may not circumvent § 2255(h)’s successive-motion rule
simply by filing a petition under § 2241. Id.


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      We have not fully defined the scope of the § 2255(e) savings clause in all

contexts; however, we have consistently stated that—to access § 2241 through the

savings clause portal in § 2255(e)—a petitioner’s claim must, among other things,

be based on a retroactively applicable Supreme Court decision. See Bryant v.

Warden, FCC Coleman-Medium, 738 F.3d 1253, 1274 (11th Cir. 2013); Williams,

713 F.3d at 1343; Wofford, 177 F.3d at 1244. This requires showing, inter alia,

that the new Supreme Court rule upon which Griffin relies—i.e., the rule

announced in Alleyne—applies retroactively on collateral review. See Bryant, 738

F.3d at 1274; Williams, 713 F.3d at 1343; Wofford, 177 F.3d at 1244.

      Here, Griffin’s sentence is 360 months, which is 240 months above the

statutory minimum penalty of 120 months’ imprisonment. Thus, Griffin is not

serving a statutory mandatory minimum sentence, and Alleyne does not apply to his

case. In any event, Alleyne does not apply retroactively on collateral review. See

Dohrmann v. United States, 442 F.3d 1279, 1281-82 (11th Cir. 2006) (holding the

Apprendi rule does not apply retroactively in the context of a § 2241 petition); see

also McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001) (holding that

Apprendi does not apply retroactively to claims raised in a § 2255 motion); Teague

v. Lane, 489 U.S. 288, 310-11, 109 S. Ct. 1060, 1075-76 (1989).




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      Because Alleyne does not apply to Griffin’s case and is not retroactive to

cases on collateral review, Griffin has not shown that § 2255 was inadequate or

ineffective to test the legality of his detention. Thus, Griffin cannot bring his

Alleyne claim in a § 2241 petition. See 28 U.S.C. § 2255(e); see also Bryant, 738

F.3d at 1274.

      Accordingly, the district court did not have subject matter jurisdiction to

review Griffin’s § 2241 petition on the merits. See Williams, 713 F.3d at 1339-40.

Alternatively, even if there was no jurisdictional issue, Griffin’s § 2241 claim fails

on the merits because neither Apprendi nor Alleyne apply retroactively on

collateral review.

                                    IV. CONCLUSION

      For the reasons stated above, we vacate and remand this case to the district

court for that court to dismiss Griffin’s § 2241 petition for lack of subject matter

jurisdiction under 28 U.S.C. § 2255(e).3

      VACATED AND REMANDED.




      3
          Griffin’s motion for bond pending appeal is denied.


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