[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-14862

Non-Argument Calendar

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D.C. Docket No. 5:12-cv-00271-WTH-PRL

RAFAEL ANTONIO HERRERA, 

 Petitioner-Appellant,

 versus

WARDEN, FCC COLEMAN - USP I, 

 Respondent-Appellee.

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Appeal from the United States District Court

for the Middle District of Florida

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(January 7, 2015)

Before HULL, MARCUS, and ANDERSON, Circuit Judges.

PER CURIAM: 

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Rafael Herrera appeals the district court’s dismissal of his habeas corpus 

petition filed pursuant to 28 U.S.C. § 2241. On appeal, Herrera argues that the 

savings clause of 28 U.S.C. § 2255(e) applies to his claim because his sentence of 

life imprisonment under 21 U.S.C. § 841(b)(1)(A)(iii) exceeded the statutory 

maximum for his offense. He argues that the district court sentenced him based on 

a quantity of drugs and drug type that were not charged in the indictment or proven 

to a jury beyond a reasonable doubt. In support of his claim, he relies on the 

Supreme Court’s decisions in DePierre v. United States, 564 U.S. __, 131 S.Ct. 

2225 (2011), Alleyne v. United States, 570 U.S. __, 133 S.Ct. 2151 (2013), 

McQuiggin v. United States, 569 U.S. __, 133 S.Ct. 1924 (2013), and Burrage v. 

United States, 571 U.S. __, 134 S.Ct. 881 (2014). He further contends that his 

mandatory life sentence violates the Ex Post Facto Clause under Peugh v. United 

States, 569 U.S. __, 133 S.Ct. 2072 (2013). After careful review, we affirm. 

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

sentence must be brought under § 2255. Sawyer v. Holder, 326 F.3d 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). 

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The “savings clause” of § 2255 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 available under § 2255 is “inadequate or ineffective to 

test the legality of his detention.” 28 U.S.C. § 2255(e); see also Sawyer, 326 F.3d 

at 1365. We have held that the savings clause is a jurisdictional provision, such 

that a petitioner must show that § 2255 is “inadequate or ineffective” before the 

district court has jurisdiction to review the § 2241 petition. Williams v. Warden, 

Fed. Bureau of Prisons, 713 F.3d 1332, 1338-40 (11th Cir. 2013), pet. for cert. 

filed, (U.S. Apr. 8, 2014) (No. 13-1221). The petitioner bears the burden of 

demonstrating that the § 2255 remedy is inadequate or ineffective to test the 

legality of his detention. Turner v. Warden, 709 F.3d 1328, 1333 (11th Cir.), cert. 

denied, 133 S.Ct. 2873 (2013). 

We have stated that the savings clause “at the very least, applies to 

actual-innocence claims due to a non-existent offense.” Bryant v. Warden, FCC 

Coleman-Medium, 738 F.3d 1253, 1281 (11th Cir. 2013). Additionally, the 

savings clause allows a petitioner to bring a claim that he was erroneously 

sentenced above the statutory maximum penalty. Id. at 1274. To show that a prior 

§ 2255 motion was inadequate or ineffective to test the legality of his detention, a 

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petitioner challenging his sentence must satisfy a five-part test: (1) throughout the 

petitioner’s sentencing, direct appeal, and first § 2255 proceeding, our precedent 

squarely foreclosed the claim raised in the § 2241 petition; (2) the Supreme Court 

overturned that binding precedent after the petitioner’s first § 2255 proceeding; 

(3) that Supreme Court decision applies retroactively to cases on collateral review; 

(4) as a result of that Supreme Court decision, the petitioner’s sentence exceeds the 

statutory maximum sentence; and (5) the savings clause of § 2255 reaches the 

petitioner’s claim. Jeanty v. Warden, FCI-Miami, 757 F.3d 1283, 1285 (11th Cir. 

2014). 

In Apprendi v. New Jersey, the Supreme Court held that any fact1 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. 466, 490, 

120 S.Ct. 2348, 2362-64 (2000). In light of Apprendi, we have explained that the 

enhanced penalties in 21 U.S.C. § 841(b) cannot be applied unless the jury 

determines the drug type and quantity involved in the drug conspiracy offenses. 

United States v. Sanders, 668 F.3d 1298, 1309-10 (11th Cir. 2012). However, we 

have determined that Apprendi does not apply retroactively to cases on collateral 

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

O’Brien, the Supreme Court applied the rule in Apprendi to conclude that the 

 1 This excludes the fact of prior conviction.

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“machinegun” provision of 18 U.S.C. § 924(c)(1)(B)(ii) was an element of the 

offense that must be proved to the jury. O’Brien, 560 U.S. at 235, 130 S.Ct. at 

2180. In Alleyne, the Supreme Court further determined that any fact, other than 

the fact of a prior conviction, that increases the applicable statutory mandatory 

minimum sentence for a crime must be submitted to a jury and found beyond a 

reasonable doubt. 570 U.S. at __, __, __, 133 S.Ct. at 2155, 2160 n.1, 2163. We 

recently held that Alleyne does not apply retroactively to cases on collateral review. 

Jeanty, 757 F.3d at 1285. In DePierre, the Supreme Court held that “the term 

‘cocaine base’ as used in § 841(b)(1) means not just ‘crack cocaine,’ but cocaine in 

its chemically basic form.” 564 U.S. at __, 131 S.Ct. at 2237. 

In Burrage, the Supreme Court held that a defendant cannot be held liable 

under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) where the 

use of a drug distributed by the defendant is not an independently sufficient cause 

of the victim’s death or serious bodily injury unless the drug use is a but-for cause 

of the death or injury. Burrage, 571 U.S. at __, 134 S.Ct. at 892. In McQuiggin, 

the Supreme Court held that there is an actual innocence exception to the statute of 

limitations in the AEDPA. 569 U.S. __, 133 S.Ct. at 1932-35. In Peugh, the 

Supreme Court held that under the Ex Post Facto Clause, a defendant cannot be 

sentenced under Guidelines put into effect after he committed his criminal acts, 

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where the subsequent Guidelines provide for a higher advisory sentencing range. 

568 U.S. at __, 133 S.Ct. at 2078.

Herrera has failed to open the portal to § 2241 because he has failed to meet 

all five requirements of the five-part test established in Bryant. 738 F.3d at 1281. 

Herrera has failed to establish the third requirement because none of the cases upon 

which he relies apply retroactively on collateral review.2

 Herrera’s argument that 

the district court erred under Alleyne and O’Brien with respect to the drug type and 

quantity found at sentencing is an Apprendi-based argument. We have held that

both Apprendi and Alleyne are not retroactively applicable to cases on collateral 

review. See McCoy, 266 F.3d at 1258; Jeanty, 757 F.3d at 1285. 

Because the Supreme Court in O’Brien applied the rule in Apprendi to 

conclude that the “machinegun” provision of 18 U.S.C. § 924(c)(1)(B)(ii) was an 

element of the offense that must be proved to the jury, it necessarily follows that 

O’Brien does not apply retroactively to cases on collateral review. O’Brien, 560 

U.S. at 235, 130 S.Ct. at 2180; Cf. McCoy, 266 F.3d at 1258. Moreover, DePierre 

did not narrow the interpretation of § 841(b), as it expanded the definition of 

cocaine base to include all cocaine in its chemically basic form. DePierre, 564

U.S. at __, 131 S.Ct. at 2237. Herrera’s reliance on Burrage and McQuiggin is 

similarly misplaced because those cases are inapposite to his argument that the 

 2 Furthermore, Herrera has failed to prove that his sentence exceeds the statutory maximum.

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drug quantity and type needed to be charged and proved beyond a reasonable 

doubt. 

We need not consider Herrera’s argument that his sentence violates the Ex 

Post Facto Clause under Peugh because Herrera did not raise this argument before 

the district court. See Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir. 1994) 

(concluding that we would not address an issue that was not raised in the § 2241 

petition). However, Herrera’s argument under Peugh fails in any event because it

is in essence an argument under United States v. Booker, 543 U.S. 220, 125 S.Ct. 

738 (2005), and we have held that Booker does not apply retroactively to cases on 

collateral review. See Varela v. United States, 400 F.3d 864, 868 (11th Cir. 2005) 

(concluding that Booker did not apply retroactively to § 2255 cases on collateral 

review). 

Because Herrera fails to show that his claim satisfied the savings clause of § 

2255, he cannot proceed under § 2241. Therefore, the district court did not have 

jurisdiction over Herrera’s § 2241 petition, and did not err in dismissing the 

petition. Accordingly, we affirm.

AFFIRMED.

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