           Case: 14-11418   Date Filed: 02/05/2015   Page: 1 of 8


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-11418
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:12-cv-22171-JEM



WILLIE BUD REED, JR.,

                                                          Petitioner-Appellant,

                               versus

WARDEN,

                                                         Respondent-Appellee.

                      ________________________

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

                            (February 5, 2015)

Before WILLIAM PRYOR, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:
               Case: 14-11418     Date Filed: 02/05/2015    Page: 2 of 8


      Willie Bud Reed, Jr., a federal prisoner proceeding pro se, appeals the

district court’s dismissal of his petition for a writ of habeas corpus, pursuant to 28

U.S.C. § 2241, challenging the legality of his sentence in light of DePierre v.

United States, 564 U.S. ___, 131 S.Ct. 2225 (2011). He also asserts that the

district court erred in denying his motion to take judicial notice of Alleyne v.

United States, 570 U.S. ___, 133 S.Ct. 2151 (2013). After a thorough review, we

affirm.

                                           I.

      The procedural history of this case, which spans over twenty-five years, may

be briefly summarized as follows: In 1988, Reed was convicted, after a jury trial,

of conspiracy to possess with intent to distribute more than 50 grams of a mixture

containing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846; and

possession with intent to distribute more than 50 grams of a substance containing

cocaine base, in violation of 21 U.S.C. § 841(a). He was sentenced to a total term

of 420 months’ imprisonment. In 1997, Reed filed a motion to vacate his sentence,

pursuant to 28 U.S.C. § 2255, alleging various sentencing errors, numerous

instances of ineffective assistance of trial and appellate counsel, and the denial of

his right to be represented at trial by counsel of his choice. The district court




                                           2
                Case: 14-11418       Date Filed: 02/05/2015      Page: 3 of 8


denied his § 2255 motion and we affirmed. See Reed v. United States, 273 F.3d

1119 (11th Cir. 2001) (table).1

       In June 2012, Reed filed the instant § 2241 petition, arguing that he is

actually innocent of violating 21 U.S.C. § 841(b)(1)(A) and that his life sentence

exceeds the 20-year statutory maximum authorized by Congress for a violation of

§ 841(b)(1)(C). In support of his argument, Reed highlighted that in DePierre, the

Supreme Court ruled that the term “cocaine base” in § 841(b)(1)(A)(iii) is not

synonymous with crack cocaine. Reed maintained that his § 2241 petition satisfied

the requirements of the savings clause because his claim had been previously

foreclosed by this court’s then-existing case law. See United States v. Munoz-

Realpe, 21 F.3d 375, 377-79 (11th Cir. 1994) (holding that the definition of

“cocaine base” does not include all forms of “cocaine base,” but, rather, is limited

to crack cocaine).

       The magistrate judge recommended the dismissal of Reed’s § 2241 petition

for lack of jurisdiction because Reed had failed to establish the necessary

conditions to satisfy the savings clause of 28 U.S.C. § 2255(e), so that his claims

might be considered in a § 2241 petition. Overruling Reed’s objections, the district

court adopted the magistrate judge’s report and dismissed his § 2241 petition.



1
 Following the denial of his § 2255 motion, Reed filed numerous post-conviction motions, all of
which were unsuccessful.
                                               3
                Case: 14-11418       Date Filed: 02/05/2015       Page: 4 of 8


       Reed next filed an unsuccessful motion for reconsideration, pursuant to Fed.

R. Civ. P. 59(e). He also moved for the district court to take judicial notice of

Alleyne, which the court also denied.

       On appeal, Reed argues that his claim satisfies the requirements of the

savings clause in § 2255(e).2 Specifically, he highlights that based on the Supreme

Court’s narrow interpretation of “cocaine base” in DePierre, he stands convicted

of an offense involving a “non-existent substance” because his indictment

misrepresented the nature of his charges by stating that “cocaine base” was

commonly known as crack cocaine. As such, he argues that he is actually innocent

of violating § 841(b)(1)(A) because his jury did not find the type and quantity of

controlled substances in his offense conduct. Reed also asserts that the district

court erred by denying his request to take judicial notice of Alleyne.

                                               II.

       “Whether a prisoner may bring a [] § 2241 petition under the savings clause

of § 2255(e) is a question of law we review de novo.” Williams v. Warden, Fed.

Bureau of Prisons, 713 F.3d 1332, 1337 (11th Cir. 2013), cert. denied, 135 S.Ct.

52 (2014). Typically, collateral attacks on the validity of a federal conviction or

sentence must be brought under 28 U.S.C. § 2255. Sawyer v. Holder, 326 F.3d


2
 In construing Reed’s arguments, we have accorded him the usual “less stringent” standard
applied to pro se pleadings, liberally construing his arguments. Boxer X v. Harris, 437 F.3d
1107, 1110 (11th Cir. 2006).
                                                4
              Case: 14-11418     Date Filed: 02/05/2015   Page: 5 of 8


1363, 1365 (11th Cir. 2003). Challenges to the execution of a sentence, rather than

the validity of the sentence itself, are properly brought under § 2241. Antonelli v.

Warden, U.S.P. Atlanta, 542 F.3d 1348, 1352 (11th Cir. 2008).

      The “savings clause” of § 2255(e), however, permits a federal prisoner,

under very limited circumstances, to file a habeas petition pursuant to § 2241.

Sawyer, 326 F.3d at 1365. Under the 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.” 28 U.S.C. § 2255(e). The

applicability of § 2255(e)’s savings clause is a threshold issue, which imposes a

subject-matter jurisdictional limit on § 2241 petitions. See Williams, 713 F.3d at

1337-38. Accordingly, before we may reach the substantive claims raised by

Reed, we must determine whether the savings clause of § 2255(e) permits him to

seek relief through a § 2241 petition.

      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 can use the savings clause to

“open the portal” to § 2241 only where he shows that: (1) throughout his

sentencing, direct appeal, and original § 2255 proceeding, his claim was squarely


                                          5
                  Case: 14-11418       Date Filed: 02/05/2015   Page: 6 of 8


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-Begay3

error claim of illegal detention above the statutory maximum penalty. Bryant v.

Warden, FCC Coleman-Medium, 738 F.3d 1253, 1262, 1274 (11th Cir. 2013).

                                                   III.

         Here, the district court did not err in dismissing Reed’s § 2241 petition. The

claim that Reed raises in his petition addresses the legality of his sentence, not the

execution of his sentence, and, therefore, it was within the scope of § 2255, not

§ 2241. See Sawyer, 326 F.3d at 1365. Because Reed already filed a § 2255

motion that was denied, he was not permitted to circumvent the statutory

restriction on successive § 2255 motions by filing a petition under § 2241. See

Gilbert, 640 F.3d at 1308. In order to proceed under § 2241, Reed needed to show

that § 2255 was “inadequate or ineffective” to challenge the legality of his

detention. 28 U.S.C. § 2255(e).

         Reed’s reliance on the Supreme Court’s decision in DePierre to argue that

§ 2255 is “inadequate and ineffective” to challenge the legality of his detention is


3
    Begay v. United States, 553 U.S. 137 (2008).
                                                    6
               Case: 14-11418     Date Filed: 02/05/2015    Page: 7 of 8


unavailing. Contrary to Reed’s contentions, DePierre did not narrow the

interpretation of § 841(b)(1)(A)(iii) and hold that “cocaine base” can never be

“crack cocaine,” but instead held that “cocaine base” includes not only “crack

cocaine,” but all cocaine in its chemically basic form. See DePierre, 564 U.S. at

___, 131 S.Ct. at 2237. Thus, DePierre did not decriminalize Reed’s conduct, nor

indicate that he was convicted of a non-existent offense. In any event, DePierre

did not overturn a circuit precedent that squarely resolved his claim so that Reed

had no genuine opportunity to raise it at trial, on appeal, or in his first § 2255

motion, as it merely involved the interpretation of a substantive criminal statute.

See Bryant, 738 F.3d at 1262, 1274; see also DePierre, 564 U.S. at ___, 131 S.Ct.

at 2237.

      Next, to the extent Reed is making a claim based on the reasoning in

Apprendi v. New Jersey, 530 U.S. 466 (2000), his argument is without merit. Reed

asserts that he is “actually innocent” of the sentence enhancement in §

841(b)(1)(A), because his jury did not find the type and quantity of controlled

substances in his offense. To make this argument, he relies on Alleyne, 570 U.S.

___, 133 S.Ct. at 2155 (applying rule in Apprendi and holding “any fact that

increases the mandatory minimum is an ‘element’ that must be submitted to the

jury”). The problem for Reed is that we recently held that the decision in Alleyne

does not apply retroactively on collateral review. See Jeanty v. Warden, FCI-


                                           7
                Case: 14-11418       Date Filed: 02/05/2015       Page: 8 of 8


Miami, 757 F.3d 1283, 1285 (11th Cir. 2014). Consequently, Reed, whose

convictions became final long before Alleyne was decided, cannot now collaterally

challenge his convictions based on his jury’s failure to specify the nature and

quantity of cocaine base. Thus, the district court did not err in denying Reed’s

motion to take judicial notice of Alleyne.4

        In sum, Reed has not satisfied the § 2255(e) savings clause requirements

and we affirm the district court’s dismissal of his § 2241 habeas corpus petition.

       AFFIRMED.




4
  Reed also cites to McQuiggin v. Perkins, 569 U.S. ___, 133 S.Ct. 1924 (2013) in support of his
claim. But Reed fails to demonstrate how the holding in McQuiggin is applicable to his § 2241
petition as he has made no showing that he is actually innocent of his offense conduct. See
McQuiggin, 569 U.S. at ___, ___, ___, 133 S.Ct. at 1928, 1931, 1934-35 (addressing whether
actual innocence, if proved, may provide an equitable exception to the statute of limitations
applicable to a state prisoner’s initial 28 U.S.C. § 2254 habeas petition).
                                               8
