                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                     FILED
                         ________________________          U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                  April 10, 2007
                               No. 06-12472                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                  D. C. Docket No. 05-00139-CV-OC-10GRJ

JOSEPH HARDEN,


                                                             Petitioner-Appellant,

                                     versus

STAN YATES,
Warden,

                                                           Respondent-Appellee.


                         ________________________

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

                                (April 10, 2007)

Before BLACK, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

     Joseph Harden, a federal prisoner proceeding pro se, appeals the dismissal of
his petition for writ of habeas corpus filed under section 2241. In his petition,

Harden argues that the sentencing court erred when it imposed a sentence greater

than 20 years of imprisonment because the indictment failed to specify a drug

quantity. The district court dismissed Harden’s section 2241 petition with

prejudice because Harden failed to qualify for the savings clause provision of

section 2255. We affirm.

      We review the denial of habeas relief de novo. Cook v. Wiley, 208 F.3d

1314, 1317 (11th Cir. 2000). “Typically, a petitioner collaterally attacks the

validity of his federal sentence by filing a petition under 28 U.S.C. § 2255. Under

the savings clause of [section] 2255, a prisoner may file a [section] 2241 petition if

an otherwise available remedy under [section] 2255 is inadequate or ineffective to

test the legality of his detention.” Sawyer v. Holder, 326 F.3d 1363, 1365 (11th

Cir. 2003) (citation omitted). “[T]he only sentencing claims that may conceivably

be covered by the savings clause are those based upon a retroactively applicable

Supreme Court decision overturning circuit precedent.” Wofford v. Scott, 177

F.3d 1236, 1245 (11th Cir. 1999).

      The district court correctly dismissed Harden’s section 2241 petition because

Harden’s claim is not based on a retroactively applicable Supreme Court decision.

Harden argues that his sentence is fundamentally defective in the light of the



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decision in United States v. Cotton, 535 U.S. 625, 122 S. Ct. 1781 (2002), and that

Cotton is retroactively applicable, but this argument fails. Cotton did not establish

an avenue of relief but explained the standard of review to be applied on appeal to

an objection under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000),

that was not preserved in the district court. Harden’s sentencing argument is

actually based on Apprendi, which is not a retroactively applicable decision. See

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

      The dismissal of Harden’s petition under section 2241 is

      AFFIRMED.




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