[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 14-13417

Non-Argument Calendar

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D.C. Docket No. 1:14-cv-21586-BB

NELSON CARTAGENA-MERCED, 

 Petitioner - Appellant,

versus

UNITED STATES OF AMERICA, 

 Respondent - Appellee.

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Appeal from the United States District Court

for the Southern District of Florida

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(April 6, 2015)

Before JULIE CARNES, JILL PRYOR and FAY, Circuit Judges.

PER CURIAM: 

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Nelson Cartagena-Merced, a federal prisoner proceeding pro se, appeals the 

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

28 U.S.C. § 2241, which relied on the Supreme Court’s recent decision in Alleyne 

v. United States, 133 S. Ct. 2151 (2013). On appeal, Mr. Cartagena-Merced 

disputes the district court’s conclusion that he had not satisfied 28 U.S.C. 

§ 2255(e)’s “savings clause” and therefore could not challenge the validity of his 

sentence under § 2241. Specifically, he asserts that, contrary to the district court’s 

decision, Alleyne represented a new rule of constitutional law that applies 

retroactively to cases on collateral review. For the reasons set forth below, we 

affirm.

I.

Mr. Cartagena-Merced was convicted in 1998 of, among other charges, 

using a firearm in relation to a crime of violence in violation of 18 U.S.C. 

§ 924(c)(1). Neither the indictment nor the jury’s verdict specified the type of 

firearm used, but at sentencing the government introduced evidence that the 

firearm in question was a semiautomatic weapon. For this reason, the district court 

increased the statutory mandatory minimum sentence on the § 924(c)(1) violation

from 5 to 10 years. Mr. Cartagena-Merced’s convictions and sentences were 

upheld on direct appeal. See United States v. Mojica-Baez, 229 F.3d 292, 313 (1st 

Cir. 2000). The following year, he filed a § 2255 motion to vacate in which he 

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raised several claims of ineffective assistance of counsel. That motion was denied 

in 2004, and Mr. Cartagena-Merced did not appeal. In 2009, Mr. CartagenaMerced filed his first § 2241 petition, raising new claims of ineffective assistance. 

The district court dismissed that petition, concluding it was, in substance, a 

successive § 2255 motion (which generally is not permitted) and was not otherwise 

properly filed under the savings clause of § 2255(e). 

In 2013, the Supreme Court held that any aggravating fact that increases the 

penalty for a crime beyond the prescribed statutory minimum must be submitted to 

a jury and proved beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2162-63. In 

other words, under Alleyne the fact that an individual used a semiautomatic

weapon in relation to a crime of violence must be submitted to a jury and proved 

beyond a reasonable doubt. See id.; 18 U.S.C. § 924(c)(1)(B) (describing 

increased penalties for short-barreled rifles and shotguns, semiautomatic weapons, 

machine guns, and “destructive devices”). The following year, Mr. CartagenaMerced filed the instant § 2241 petition in which he asserted that Alleyne provided 

a basis for his new petition and for relief. The district court dismissed the petition 

as successive. Mr. Cartagena-Merced now appeals.

II.

Typically, a prisoner must assert any collateral attacks on the validity of his 

federal conviction or sentence via 28 U.S.C. § 2255. Sawyer v. Holder, 326 F.3d 

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1363, 1365 (11th Cir. 2003). Title 28 U.S.C. § 2241 generally is reserved for 

challenges to the execution, rather than validity, of a sentence. Antonelli v. 

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

federal prisoner . . . has already been denied [§ 2255] relief,” then a § 2241 petition

that attacks the validity of a sentence “shall not be entertained” unless it “appears 

that the remedy by [§ 2255] motion is inadequate or ineffective to test the legality 

of his detention.” 28 U.S.C. § 2255(e). This exception to § 2255(e)’s bar on a § 

2241 petition, which we refer to as the “savings clause,” places the burden on the 

petitioner to establish that the remedy provided by § 2255 is “inadequate or 

ineffective . . . .” Id. Because this savings clause is jurisdictional, a prisoner 

petitioning the district court under § 2241 must make this showing before the 

district court may take jurisdiction of the case. Williams v. Warden, Fed. Bureau 

of Prisons, 713 F.3d 1332, 1337-40 (11th Cir. 2013), cert. denied, 135 S. Ct. 52 

(2014). 

We review de novo whether a prisoner may bring a § 2241 petition under 

§ 2255(e)’s savings clause. Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 

1253, 1262 (11th Cir. 2013). And we recognize that the statutory bar on second 

and successive § 2255 petitions, standing alone, cannot render § 2255’s remedy 

inadequate or ineffective under the savings clause. Gilbert v. United States, 640 

F.3d 1293, 1308 (11th Cir. 2011) (en banc). Rather, a petitioner may employ the 

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savings clause properly to file a § 2241 petition where he shows that (1) 

throughout his sentencing, direct appeal, and original § 2255 proceeding his claim 

squarely was foreclosed by binding circuit precedent; (2) his current claim is based 

on a Supreme Court decision that overturned that formerly binding precedent; (3) 

the Supreme Court’s decision is retroactively applicable on collateral review; (4) as 

result of the new rule’s application, his sentence exceeds the applicable statutory 

maximum penalties; and (5) the savings clause of § 2255 reaches the petitioner’s 

claim. See Bryant, 738 F.3d at 1274.

III.

We conclude the district court did not err in dismissing Mr. CartagenaMerced’s § 2241 petition. The claim he raises in his petition addresses the validity

of his sentence, not its execution, and therefore falls within the scope of § 2255 

rather than § 2241. See Sawyer, 326 F.3d at 1365. Because Mr. Cartagena-Merced 

previously had filed a § 2255 motion that was denied, he cannot merely circumvent 

the statutory restriction on successive § 2255 motions by filing a petition under 

§ 2241. See Gilbert, 640 F.3d at 1308. To proceed under § 2241, then, Mr. 

Cartagena-Merced must show by meeting the elements set forth in Bryant that 

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

28 U.S.C. § 2255(e); Bryant, 738 F.3d at 1274. He has not done so here. 

Although he relies upon the Supreme Court’s decision in Alleyne as a ground for 

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relief, this Court previously has concluded Alleyne is not retroactively applicable 

on collateral review. See Jeanty v. Warden, FCI-Miami, 757 F.3d 1283, 1285 

(11th Cir. 2014). Thus, because Jeanty forecloses Mr. Cartagena-Merced’s ability 

to meet the third element of Bryant, we find no reversible error in the district 

court’s dismissal.1

AFFIRMED.

 1 Because we conclude Jeanty forecloses Mr. Cartagena-Merced’s petition, we do not address 

any of the government’s alternative arguments for affirming the judgment of the district court.

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