            Case: 12-15956    Date Filed: 12/19/2013   Page: 1 of 7


                                                           [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-15956
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 5:12-cv-00305-JSM-PRL



ALLEN JAMES STARKS,

                                                            Petitioner-Appellant,

                                    versus

WARDEN, FCC COLEMAN-USP I,

                                                           Respondent-Appellee.

                       ________________________

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

                             (December 19, 2013)

Before TJOFLAT, MARTIN and FAY, Circuit Judges.

PER CURIAM:
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      Allen Starks, proceeding pro se, appeals the district court’s dismissal of his

petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2241. After

review of the record and the parties’ arguments, we affirm.


                                          I.

      The availability of habeas relief under 28 U.S.C. § 2241 presents a question

of law that we review de novo. Cook v. Wiley, 208 F.3d 1314, 1317 (11th Cir.

2000). “[W]e may affirm for any reason supported by the record, even if not relied

upon by the district court.” United States v. Al-Arian, 514 F.3d 1184, 1189 (11th

Cir. 2008) (quotation marks omitted). A federal prisoner must ordinarily bring any

collateral attacks 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 a federal

prisoner has filed a § 2255 motion, as Starks has, he may file a second or

successive § 2255 motion only in two very limited circumstances that do not apply

here. See 28 U.S.C. § 2255(h). Separately, the “savings clause” of

§ 2255(e) permits a federal prisoner to file a habeas petition pursuant to § 2241

when the remedy by § 2255 motion “is inadequate or ineffective to test the legality

of his detention.” Id. §§ 2241(a), 2255(e). However, one of the minimum

requirements of a § 2241 claim is that it “must be based upon a retroactively

applicable Supreme Court decision.” Williams v. Warden, Fed. Bureau of Prisons,

713 F.3d 1332, 1343 (11th Cir. 2013).

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                                                II.

       Starks is a prisoner at the Coleman Federal Correctional Complex in the

Middle District of Florida. In 1991, a federal jury in the Southern District of

Alabama found Starks guilty of conspiracy to possess cocaine and cocaine base

with the intent to distribute (count one), structuring financial transactions to avoid

reporting requirements (count three), and money laundering (counts four and five).

Count one of the superseding indictment charged that Starks had conspired to

possess with the intent to distribute “more than five (5) kilograms of cocaine and

more than fifty (50) grams of a mixture and substance containing a detectable

amount of cocaine which contains cocaine base” in violation of 21 U.S.C.

§§ 841(a)(1) and 846. Starks received a life sentence on count one, a concurrent

60-month sentence on count three, and concurrent 240-month sentences on counts

four and five. We focus on count one because of its relevance to Starks’s § 2241

petition.

       Starks unsuccessfully pursued relief under 28 U.S.C. § 2255 in the

sentencing court in 2001.1 Starks v. United States, No. 01-480 (S.D. Ala. filed

June 28, 2001); id. (Order filed Aug. 21, 2001). In his current § 2241 petition,

Starks argues that he is actually innocent of violating 21 U.S.C.
1
  Starks also sought a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and Amendment
706, but because of his drug quantity level, together with his leadership role and obstruction of
justice enhancements, this amendment did not change his guideline range of life imprisonment.
United States v. Starks, 409 F. App’x 264, 265–66 (11th Cir. 2010). He was therefore not
entitled to relief on account of Amendment 706.
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§ 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 that he is entitled to file a § 2241 petition, Starks relies on two Supreme

Court cases, DePierre v. United States, ___ U.S. ___, 131 S. Ct. 2225 (2011), and

United States v. O’Brien, 560 U.S. 218, 130 S. Ct. 2169 (2010). After briefing,

the district court dismissed Starks’s § 2241 petition because these cases are not

retroactively applicable and do not render Starks actually innocent of his offense.

                                         III.

      Because Starks misinterprets the holding of DePierre, and because neither

DePierre nor O’Brien apply retroactively, he is not entitled to relief under § 2241.

First, in DePierre, the Supreme Court held that “the term ‘cocaine base’ as used in

[21 U.S.C.] § 841(b)(1), means not just crack cocaine, but cocaine in its chemically

basic form.” 131 S. Ct. at 2237. Based on DePierre’s interpretation of the term

“cocaine base,” Starks asserts he was convicted and sentenced for a non-existent

substance and thus for conduct that did not constitute a crime. Starks relies on the

phrasing in his indictment that charged him with possessing with intent to

distribute “more than five (5) kilograms of cocaine and more than fifty (50) grams

of a mixture and substance containing a detectable amount of cocaine which

contains cocaine base.”




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      Even assuming that DePierre applies retroactively, we cannot say that

DePierre shows that Starks was convicted for a non-existent substance or offense.

Contrary to Starks’s contentions, DePierre did not narrow the interpretation of

§ 841(b)(1)(A), but instead held that “cocaine base” includes not only “crack

cocaine,” but all cocaine in its chemically basic form. DePierre, 131 S. Ct. at

2237. For that reason, DePierre did not decriminalize Starks’s conduct and the

language in Starks’s indictment still falls within the definition established in

DePierre, as well as the relevant federal drug statutes. See 21 U.S.C. §

841(b)(1)(A)(ii)(II) (“cocaine”); id. § 841(b)(1)(A)(iii) (“mixture or substance

described in clause [§ 841(b)(1)(A)](ii) which contains cocaine base”).

      Second, to the extent Starks is making a claim based on the reasoning in

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), such claims are not

retroactive. Starks argues that he is “actually innocent” of the sentence

enhancement in 21 U.S.C. § 841(b)(1)(A)(ii) and (iii), because his jury did not find

the type and quantity of controlled substances in his offense. To make this

argument, he relies on DePierre, O’Brien and Alleyne v. United States, ___ U.S.

___, ___, 133 S. Ct. 2151, 2155 (2013) (applying rule in Apprendi v. New Jersey

and holding “any fact that increases the mandatory minimum is an ‘element’ that

must be submitted to the jury”).




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      Although the jury found Starks “GUILTY as charged in Count 1 of the

indictment,” the jury was specifically instructed that “[t]he evidence in this case

need not establish that the amount or quantity of cocaine was as alleged in the

indictment[, b]ut only that a measureable amount of cocaine was . . . the subject of

the acts charged in the indictment.” In light of the language of the indictment and

the district court’s instructions, it is evident that the jury was required to find drug

type, but not drug quantity. Under current law, established since Apprendi was

decided in 2000, this is constitutional error. See United States v. Sanders, 668 F.3d

1298, 1309 (11th Cir. 2012) (“[T]he enhanced statutory maximum penalties in

§ 841(b) cannot apply unless the jury determines the drug type and quantity

involved in the overall drug conspiracy offense.”).

      The problem for Starks is that his argument about the jury’s failure to find

drug quantity is at its core based on Apprendi. Apprendi established 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.” 530 U.S. at 490, 120 S. Ct. at 2362–63. In light of

Apprendi, we held that it is constitutional error to increase a defendant’s sentence

based on drug quantity beyond the 20-year statutory maximum in 21 U.S.C.

§ 841(b)(1)(C) unless it is submitted to a jury and proven beyond a reasonable

doubt. United States v. Sanchez, 269 F.3d 1250, 1270 (11th Cir. 2001) (en banc).


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But we have also held that the Apprendi rule does not apply retroactively. See

Dohrmann v. United States, 442 F.3d 1279, 1281–82 (11th Cir. 2006); McCoy v.

United States, 266 F.3d 1245, 1258 (11th Cir. 2001) (“[W]e hold that the new

constitutional rule of criminal procedure announced in Apprendi does not apply

retroactively on collateral review.”).

      The decisions in Alleyne and O’Brien are based on Apprendi. See Alleyne,

133 S. Ct. at 2155 (holding that the distinction between “facts that increase the

statutory maximum and facts that increase only the mandatory minimum . . . is

inconsistent with . . . Apprendi”); O’Brien, 560 U.S. at 224, 235 130 S. Ct. at

2174–75, 2180 (applying Apprendi rule and holding that whether firearm was a

“machinegun” under the federal firearms statute, 18 U.S.C. § 924(c)(1)(B)(ii), is an

element of the offense that must be proved to a jury beyond a reasonable doubt).

Consequently, Starks, whose conviction became final long before Apprendi,

Alleyne, and O’Brien were decided, cannot now collaterally challenge his

conviction based on his jury’s failure to find drug quantity, because the holding in

Apprendi does not apply retroactively.

      For these reasons, we find that the district court did not err by dismissing

Starks’s § 2241 petition.

      AFFIRMED.




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