              Case: 13-14686    Date Filed: 07/16/2014   Page: 1 of 9


                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-14686
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 2:12-cv-00188-LGW-JEG


RAYFORD STEVENS,

                                                          Petitioner-Appellant,

                                      versus

WARDEN,

                                                         Respondent-Appellee.

                         ___________________________

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

                                  (July 16, 2014)

Before MARTIN, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:

      Proceeding pro se, Rayford Stevens, a federal inmate serving a life sentence,

appeals the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C.
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§ 2241. The district court concluded that Mr. Stevens’ petition had failed to satisfy

the “savings clause” requirements of 28 U.S.C. § 2255(e). Following a review of

the record and the parties’ briefs, we affirm.

                                                   I

         On April 21, 1994, following a jury trial in the Southern District of

Alabama, Mr. Stevens was convicted of three offenses: conspiracy to commit

armed robbery of a motor vehicle, in violation of 18 U.S.C. §§ 371 and 2 (Count

1); armed robbery of a motor vehicle (“carjacking”), in violation of 18 U.S.C. §

2119 (Count 2); 1 and use of a firearm during a crime of violence, in violation of 18

U.S.C. § 924(c) (Count 3). See AL D.E. 1. 2


1
    At the time of Mr. Stevens’ offense and conviction, 18 U.S.C. § 2119 provided:

         Whoever, with the intent to cause death or serious bodily harm, takes a motor vehicle that
         has been transported, shipped, or received in interstate or foreign commerce from the
         person or presence of another by force and violence or by intimidation, or attempts to do
         so, shall—

             (1) be fined under this title or imprisoned not more than 15 years, or both,

             (2) if serious bodily injury (as defined in section 1365 of this title) results, be fined
             under this title or imprisoned not more than 25 years, or both, and

             (3) if death results, be fined under this title or imprisoned for any number of years up
             to life, or both, or sentenced to death.

18 U.S.C. § 2119 (1988).
2
  Although Mr. Stevens was convicted and sentenced in Alabama, he is currently incarcerated at
the Federal Correctional Institution in Jesup, Georgia, and, therefore, filed his present petition in
the Southern District of Georgia. For the sake of clarity, we refer to court documents related to
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       Upon its own finding at sentencing that a death resulted from the carjacking,

the district court sentenced Mr. Stevens to life imprisonment without parole for

Count 2, to be served concurrently with 60-month sentences for Counts 1 and 3.

Mr. Stevens appealed, and this Court affirmed his convictions and sentences. See

United States v. Knight, 70 F.3d 1285 (11th Cir. 1995) (table).

       In 1997, Mr. Stevens filed a motion to vacate pursuant to 18 U.S.C. § 2255,

arguing (1) that the government failed to prove two essential elements to support

his convictions on Counts 1 and 2; (2) that he was denied effective assistance of

counsel; and (3) that newly discovered evidence would likely have resulted in his

acquittal. See AL D.E. 139. The district court denied his petition “in accordance

with Rule 8(a) of the Rules Governing Section 2255 Proceedings for the United

States District Courts.” See AL D.E. 150. Mr. Stevens was denied a certificate of

appealability, first by the district court and then by this Court. See AL D.E. 152;

GA D.E. 8-2. See also Stevens v. United States, 49 Fed. App’x 288 (11th Cir.

2002) (table) (affirming denial of motion to reconsider). 3




his proceedings in Alabama, i.e., trial, sentencing, and his initial § 2255 petition, as “AL D.E.,”
and those filed in his present petition in Georgia as “GA D.E.”
3
  Mr. Stevens claims in his present § 2241 petition that he was improperly sentenced on Count 2
because the elements of the carjacking charge were not stated in his indictment. But his earlier §
2255 motion contradicts that assertion. In his § 2255 motion, Mr. Stevens stated that “[t]he
Indictment charged that [co-defendant] Knight and Stevens conspired to take a motor vehicle by
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       After the denial of Mr. Stevens’ § 2255 motion, the Supreme Court decided

Jones v. United States, 526 U.S. 227 (1999). Jones held that 18 U.S.C. § 2119

“establish[ed] three separate offenses by the specification of distinct elements, each

of which must be charged by indictment, proven beyond a reasonable doubt, and

submitted to a jury for its verdict.” 526 U.S. at 252.                The following year, as

foreshadowed by Jones, the Supreme Court held in Apprendi v. New Jersey, 530

U.S. 466 (2000), that any facts enhancing the penalty for a crime beyond the

prescribed statutory maximum must be submitted to the jury.

       In 2003, citing Apprendi and Jones, Mr. Stevens filed a pro se habeas

petition pursuant to 28 U.S.C. § 2241, claiming that he was “factually innocent,”

and that, pursuant to Jones, the sentencing court had no authority to sentence him

based on elements neither stated in the indictment nor proven beyond a reasonable

doubt. See Report and Recommendation, GA D.E. 8-2 at 2. The district court

dismissed the § 2241 petition because Mr. Stevens had not shown that a petition

under § 2255 was inadequate or ineffective to test the legality of his detention, as

required before a court may entertain a § 2241 petition pursuant to the savings

clause in §2255(e). See 2004 District Court Order, GA D.E. 8-3. The district court




force, violence or intimidation, and that . . . during the taking, the victim, Harold Edward Dunn,
was shot and fatally wounded.” AL D.E. 139.

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regarded Mr. Stevens’ petition as a successive § 2255 motion that had been filed

without the required prior approval of the Eleventh Circuit. See id.

      In 2004, Mr. Stevens filed his second § 2241 petition, raising essentially the

same claims as before. See 2005 District Court Order, GA D.E. 8-4. The district

court dismissed Mr. Stevens’ petition, again, for failing to satisfy §2255(e).

      On November 20, 2012, Mr. Stevens filed this present § 2241 petition,

alleging for the third time that the district court sentenced him based on elements

neither stated in the indictment nor proven beyond a reasonable doubt to the jury,

in violation of the rule established in Jones and Apprendi. See GA D.E. 1. Mr.

Stevens also claimed that his life sentence exceeds the statutory maximum under §

2119(1), and that he is actually innocent of the crimes charged. See id.

                                          II

      We exercise plenary review over the denial of a § 2241 habeas petition. See

Williams v. Warden, Fed. Bureau of Prisons, 713 F.3d 1332, 1337 (11th Cir.

2013). A federal prisoner may challenge the propriety of his conviction and

sentence pursuant to a motion under 28 U.S.C. § 2255, but is generally only

entitled to file one such motion. A second or successive §2255 motion may not be

filed without permission of the circuit court. See 28 U.S.C. § 2244(b)(3)(A).

      Under limited circumstances, a prisoner may file a subsequent habeas corpus

petition under 28 U.S.C. § 2241 without seeking a circuit court’s permission. See
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28 U.S.C. §§ 2241(a), 2255(e). See also Sawyer v. Holder, 326 F.3d 1363, 1365

(11th Cir. 2003). To do so, however, a petitioner must satisfy the “savings clause”

of § 2255(e), by showing that “the remedy by [§ 2255] motion is inadequate or

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

      We have held that a prisoner may not use § 2241 to circumvent the

restrictions on successive § 2255 motions. See Wofford v. Scott, 177 F.3d 1236,

1245 (11th Cir. 1999).        A petitioner must establish at least two necessary

conditions to satisfy the threshold, jurisdictional “savings clause” inquiry:

             First, the claim must be based upon a retroactively
             applicable Supreme Court decision. The second, and
             equally essential, condition is that the Supreme Court
             decision must have overturned a circuit precedent that
             squarely resolved the claim so that the petitioner had no
             genuine opportunity to raise it at trial, on appeal, or in his
             first § 2255 motion.

Williams, 713 F.3d at 1343.

                                          III

      Mr. Stevens argues in his current § 2241 petition that his sentence exceeded

the statutory maximum for his offense of conviction. Relying on the Supreme

Court’s decisions in Jones and Apprendi, Mr. Stevens asserts that he could not be

sentenced to the maximum term of life imprisonment based on an element neither

stated in the indictment nor proven beyond a reasonable doubt—namely, that his

violation of 18 U.S.C. § 2119 resulted in the death of another. See 18 U.S.C. §
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2119(3) (1994). Mr. Stevens instead contends that he was subject to a 15-year

maximum sentence pursuant to 18 U.S.C. § 2119(1) (1994).

      The Supreme Court’s holding in Jones was “developed in Apprendi and

subsequent cases,” culminating in the principle that “[a]ny fact (other than a prior

conviction) which is necessary to support a sentence exceeding the maximum

authorized by facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable doubt.” United

States v. Booker, 543 U.S. 220, 237-44 (2005).

      Although we recognize Mr. Stevens’ assertion that the current claims are

based in part on Jones, we conclude that they are no different than claims based on

the decisions in Apprendi and its progeny. Indeed, Mr. Stevens relies on Jones for

essentially the same principle announced in Apprendi: that his violation of § 2119

resulted in the death of another—the “fact . . . necessary to support a sentence

exceeding the maximum authorized by facts established by . . . [the] jury

verdict”— was required to be proven to a jury beyond a reasonable doubt. See

Booker, 543 U.S. at 237-44 (discussing Apprendi).

      We have previously held that Apprendi does not apply retroactively on

collateral appeal, including in the context of a § 2241 petition. See Dohrmann v.

United States, 442 F.3d 1279, 1281-82 (11th Cir. 2006). See also McCoy v. United

States, 266 F.3d 1245, 1256-58 (11th Cir. 2001) (finding Apprendi not retroactive
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for collateral review pursuant to a § 2255 motion); In re Joshua, 224 F.3d 1281,

1283 (11th Cir. 2000) (rejecting the retroactive application of Apprendi to permit

second or successive habeas petitions). We have likewise held that Booker has no

retroactive applicability on collateral review. See Varela v. United States, 400

F.3d 864, 868 (11th Cir. 2005) (explaining that “Booker’s constitutional rule falls

squarely under the category of new rules of criminal procedure that do not apply

retroactively to § 2255 cases on collateral review”). We see no reason to treat

Jones any differently.

       Accordingly, because his § 2241 claims are not “based upon a retroactively

applicable Supreme Court decision,” Mr. Stevens’ petition fails to satisfy the

“savings clause” of § 2255(e). 4

                                               IV




4
   In his objections to the magistrate judge’s report and recommendation and in his appellate
briefs, Mr. Stevens argued for the first time that Johnson v. United States, 559 U.S. 1265 (2010),
required the sentencing court to impose a sentence based on “the least prohibited act where it is
unclear which aspect of the . . . statute the defendant violated.” Reply Brief of Appellant at 2
(ellipsis in original). See also GA D.E. 12 at 3. Johnson, however, dealt with the applicability of
a state conviction for battery as a predicate “violent felony” offense for an enhancement under
the Armed Career Criminal Act. Where the elements of an offense establish several different
ways of committing that offense, and where no record exists to explain how the defendant
committed the offense, the Supreme Court held that a district court, in determining the
applicability of the ACCA enhancement, must assume that the prior conviction for that offense
rested upon “the least of these acts.” Johnson, 559 U.S. at 137. Because Mr. Stevens failed to
raise this argument in his initial habeas petition, it is not properly before us. For the sake of
clarity, however, we note that the argument would be inapposite to Mr. Stevens’ situation even if
it had been adequately raised.
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      Based on the foregoing, we affirm the district court’s dismissal of Mr.

Stevens’ § 2241 habeas corpus petition.

      AFFIRMED.




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