### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 14

‐ 3513

J IMMIE D ARRELL P OE

, S R

.,

Petitioner

‐ Appellant

,

v.

L EANN L A R IVA

, Warden,

Respondent

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Terre Haute Division

No. 2:14

‐ cv

‐ 00324

— William T. Lawrence

, Judge

.

____________________

A RGUED A PRIL 7, 2016

— D ECIDED A UGUST 22, 2016

____________________

Before E ASTERBROOK

, K ANNE

, and S YKES

, Circuit Judges

.

K ANNE

, Circuit Judge

. In 1996, a jury convicted Petitioner

Jimmie Poe of several narcotics

‐ related offenses, including en

‐ gaging in a continuing criminal enterprise (“CCE”). On June

1, 1999, the Supreme Court decided Richardson v. United States

,

526 U.S. 813 (1999), which rendered the CCE jury instructions

used in Poe’s trial erroneous.2 No. 14

‐ 3513

Poe petitioned, on July 16, 1999, for a writ of habeas cor

‐

pus, pursuant to 28 U.S.C. § 2241, challenging his conviction

under Richardson

. Fourteen months later, the district court dis

‐

missed Poe’s § 2241 petition without prejudice, because he

should have filed under 28 U.S.C. § 2255. On June 18, 2001,

Poe petitioned for a writ of habeas corpus, pursuant to § 2255,

which was subsequently denied as time

‐ barred. We affirmed

the district court’s denial of Poe’s § 2255 petition in Poe v.

United States

, 468 F.3d 473 (7th Cir. 2006).

On October 28, 2014, Poe filed a new § 2241 petition, chal

‐ lenging his conviction and sentence in light of Alleyne v.

United States

, 133 S. Ct. 2151 (2013). The district court denied

his petition, again for not filing it under § 2255, and he ap

‐ pealed. We affirm.

I. B ACKGROUND

We begin with a brief synopsis of Poe v. United States

, which makes up the early background of Poe’s case. We then

summarize the present case, which relates to his § 2241 peti

‐

tion, filed on October 28, 2014.

A. Poe v. United States

In 1996, Poe was charged with various narcotics

‐ related

offenses, including engaging in a CCE, in violation of 21

U.S.C. § 848(c). At Poe’s trial, the district court provided the

following jury instructions to find violation of the CCE stat

‐

ute: “You must unanimously find that the defendant commit

‐

ted at least two violations of the federal drug laws, but you do

not have to agree on which two violations. ” Poe v. United States

,

468 F.3d at 475 (emphasis in original and internal quotation

marks omitted). The jury convicted Poe of one count of CCE

and nine other counts of narcotics

‐ related offenses, and theNo. 14

‐ 3513 3

district court sentenced him to 360 months’ imprisonment.

This court affirmed on direct appeal.

On June 1, 1999, the Supreme Court decided Richardson

, which held that for a CCE conviction under § 848(c), the un

‐ derlying individual violations are elements of the CCE and

therefore require jury unanimity. 526 U.S. at 824. In light of

Richardson

, the jury instructions used in Poe’s trial were erro

‐

neous.

On July 16, 1999, Poe filed a § 2241 petition, challenging

his CCE conviction under Richardson

. Fourteen months later,

on September 19, 2000, the district court dismissed Poe’s

§ 2241 petition as procedurally improper, without prejudice,

and advised him to file a § 2255 petition, which he did so on

June 18, 2001. Twenty

‐ one months later, on March 17, 2003,

the district court denied Poe’s § 2255 petition as untimely. Poe

appealed, and this court granted him a certificate of appeala

‐ bility.

On November 6, 2006, this court decided Poe v. United

States

, affirming the denial of Poe’s § 2255 petition. 468 F.3d

at 478. In that decision, we began by determining that Poe’s

§ 2255 motion was untimely. Id. at 476. We then held that

“[t]here is no legal basis for Poe to claim he was entitled to

have his improper § 2241 petition construed as a § 2255 mo

‐

tion for purposes of AEDPA’s statute of limitations.” Id. at 477

(emphasis in original). In conclusion, we noted that even if

Poe’s § 2255 petition had been timely, it would have “run up

against this circuit’s case law holding Richardson error to be

harmless where the jury unanimously convicted the defend

‐

ant of two or more separate drug offenses along with the CCE

offense.

... Poe was separately convicted of five felony counts4 No. 14

‐ 3513

of distributing marijuana or possessing marijuana with intent

to distribute.” Id. at 478 n. 8. (citations omitted).

B. Current 28 U.S.C. § 2241 Petition

We now consider the present case. On June 17, 2013, the

Supreme Court decided Alleyne

, which held that any fact that

increases the mandatory minimum of a sentence is an element

of the crime that must be submitted to the jury. 133 S. Ct. at

2162–63. On October 28, 2014 Poe filed another § 2241 peti

‐

tion, claiming that, because the jury never found him guilty

of an element of 21 U.S.C. § 838(c), his CCE conviction and

sentence were unconstitutional in light of Alleyne

.

On November 3, 2014, the district court summarily denied

Poe’s § 2241 petition. The district court explained that a fed

‐

eral prisoner may only use a § 2241 petition if § 2255 is “inad

‐

equate or ineffective,” which, in turn, requires reliance on “a

new case of statutory interpretation rather than a constitu

‐

tional decision.” (R. 3 at 2.) The district court declared that Al

‐ leyne was a constitutional decision and it “may not be applied

retroactively to cases on collateral review.” ( Id. ) Poe’s § 2241

petition was denied, and he appealed.

On July 21, 2015, this court granted a certificate of appeal

‐ ability and directed the parties to “address the bearing of Web

‐

ster v. Daniels

, 784 F.3d 1123 (7th Cir. 2015) (en banc), Brown v.

Caraway

, 719 F.3d 583 (7th Cir. 2013), Crayton v. United States

,

No. 13

‐ 2548, 2015 WL 3895767 (7th Cir. June 25, 2015), and

Persaud v. United States

, 134 S. Ct. 1023 (2014) (mem.).”

II. A NALYSIS

On appeal, Poe argues that the district court erred in its

denial of his § 2241 petition. Alternatively, he contends thatNo. 14

‐ 3513 5

his § 2241 petition should be treated as a request to file a suc

‐

cessive § 2255 petition.

A. 28 U.S.C. § 2241

Poe’s primary claim is that the district court erred in its

denial of his § 2241 petition, which relied on Alleyne

. “We re

‐

view the denial of a § 2241 petition de novo.” Caraway

, 719

F.3d at 586.

“Federal prisoners who seek to bring collateral attacks on

their conviction or sentences must ordinarily bring an action

under 28 U.S.C. § 2255.” Id. Section 2255(a) provides that “[a]

prisoner in custody under sentence of a court established by

Act of Congress claiming the right to be released upon the

ground that the sentence was imposed in violation of the Con

‐

stitution or laws of the United States

... may move the court

which imposed the sentence to vacate, set aside or correct the

sentence.”

A federal prisoner, however, may file a petition under

§ 2241, if the remedy under § 2255 is “‘inadequate or ineffec

‐

tive to test the legality of his detention.’” Caraway

, 719 F.3d at

586 (quoting 28 U.S.C. § 2255(e) (“Savings Clause”)). This

generally requires “a structural problem in § 2255 [that] fore

‐

closes even one round of effective collateral review,” unre

‐

lated to the petitioner’s own mistakes. Taylor v. Gilkey

, 314

F.3d 832, 835 (7th Cir. 2002).

Here, Poe’s claim fails because he cannot demonstrate that

there is a structural problem with § 2255 that is preventing

him from seeking relief to which he is entitled.6 No. 14

‐ 3513

One circumstance under which this court has permitted

resort to § 2241 is under the following three

‐ condition test, es

‐

tablished in In re Davenport

, 147 F.3d 605, 610–12 (7th Cir.

1998):

First, the prisoner must show that he relies on a stat

‐

utory

‐ interpretation case, rather than a constitu

‐

tional case. Second, the prisoner must show that he

relies on a retroactive decision that he could not

have invoked in his first § 2255 motion. The third

condition is that [the] sentence enhancement

... have

been a grave enough error to be deemed a miscar

‐ riage of justice corrigible therefore in a habeas cor

‐

pus proceeding.

Brown v. Caraway

, 719 F.3d 583, 586 (7th Cir. 2013) (alteration

in original) (citations and internal quotation marks omitted).

Poe cannot show that Davenport permits him to use § 2241

to contest his detention. Poe’s § 2241 petition fails the first

Davenport condition because Alleyne is a constitutional case,

not a statutory

‐ interpretation case. This court has expressed

clearly that “ Alleyne establishes a new rule of constitutional

law.” Simpson v. United States

, 721 F.3d 875, 876 (7th Cir. 2013).

Poe contends that Caraway misreads Davenport

, asserting

that Davenport does not actually preclude use of § 2241 for a

constitutional case. This contention is meritless. The Daven

‐

port conditions for § 2241 were based on an assessment of the

essential functions of habeas corpus and limitations of the

remedy under § 2255. 147 F.3d at 609. Davenport explicitly

noted that § 2255 “gives a convicted defendant only one fur

‐

ther bite at the apple after his direct appeal unless he can

demonstrate a compelling reason, as defined in the section”

such as “a new and retroactive rule of constitutional law.” Id.No. 14

‐ 3513 7

at 610. The Davenport court was referring to § 2255(h), which

allows a “[a] second or successive motion” for “a new rule of

constitutional law, made retroactive to cases on collateral re

‐

view by the Supreme Court, that was previously unavaila

‐

ble.”

Because § 2255(h) already provides a remedy for new con

‐

stitutional cases, these types of cases would not fall under the

Savings Clause, which is available only if the remedy under

§ 2255 is “inadequate or ineffective.” Where Davenport recog

‐

nized a structural problem in § 2255(h) is in the fact that it did

not permit a successive petition for new rules of statutory law

made retroactive by the Supreme Court. Thus, Caraway did

not misread Davenport.

Poe’s § 2241 petition also fails the second Davenport condi

‐

tion because Alleyne is not retroactive. This court has held un

‐ ambiguously that “ Alleyne does not apply retroactively.”

Crayton v. United States

, 799 F.3d 623, 624 (7th Cir. 2015). This

is because “[t]he declaration of retroactivity must come from

the Justices. The Court resolved Alleyne on direct rather than

collateral review. It did not declare that its new rule applies

retroactively on collateral attack.” Simpson v. United States

, 721

F.3d 875, 876 (7th Cir. 2013) (citations omitted). Moreover, in

‐ cluding this court, “[e]very court of appeals that has consid

‐

ered the subject has concluded that Alleyne is not retroactive

on collateral review.” Crayton

, 799 F.3d at 624 (collecting

cases). Poe does not provide any persuasive reason to disturb

this court’s rule that Alleyne is not retroactive, so it shall re

‐

main in place.

Nor can Poe point to any other authorities that would

grant him the ability to file a § 2241 petition. The authorities

mentioned in our grant of a certificate of appealability cannot8 No. 14

‐ 3513

sustain Poe’s claim. Persaud

, 134 S. Ct. at 1023, and Caraway

,

719 F.3d at 587–89, stand for the proposition that a prisoner

can challenge his sentence through a § 2241 petition, as Poe

does here. But these two cases provide no further help to Poe.

As discussed, Crayton actually cuts against Poe’s claim be

‐

cause it reiterates the Davenport conditions for a § 2241 peti

‐

tion, which Poe fails to meet. 799 F.3d at 624–25.

Webster also cannot assist Poe. In Webster

, this court held

that “there is no categorical bar against resort to section 2241

in cases where new evidence would reveal that the Constitu

‐

tion categorically prohibits a certain penalty.” 784 F.3d at

1139. Webster

, however, is inapplicable to the present case be

‐

cause Poe’s § 2241 petition does not involve a claim of new

evidence—instead, he raises a claim under Alleyne that the

jury did not find him guilty of an element of CCE.

Poe contends that Webster stands for the proposition that

“the savings clause of § 2255(e) permit[s] a federal prisoner to

resort to a petition under § 2241 because the United States Su

‐

preme Court established that the Constitution itself forbade

the sentence imposed.” (Appellant Br. 6.) This reading of Web

‐

ster is too broad. Webster stemmed from a structural problem

in § 2255—the defendant could not have used § 2255 at the

time of Atkins v. Virginia

, 536 U.S. 304 (2002), because he did

not have the new evidence of his social security records, Web

‐

ster

, 784 F.3d at 1134, and he could not use the new evidence

when discovered because, under the Fifth Circuit’s rule,

§ 2255(h)(1) required evidence of innocence of the offense

, not

of the penalty, id at 1135. Additionally, there is nothing in

Webster to suggest that its holding applies outside the context

of new evidence. Indeed, the Webster court took great care to

assure that its holding was narrow in scope—“[i]t will be aNo. 14

‐ 3513 9

rare case where records that predate the trial are found much

later, despite diligence on the part of the defense, and where

those records bear directly on the constitutionality of the

death sentence.” 784 F.3d at 1140 (first emphasis added).

In contrast to Webster

, Poe was unable to bring his Richard

‐

son claim because he filed the wrong petition under § 2241 and

his subsequent petition under § 2255 was untimely. Unlike

Webster

, Poe’s case involves neither a structural problem with

§ 2255, nor new evidence. Hence, Webster does not help Poe.

On a final note, Poe makes various attempts to improperly

shoehorn his Richardson claim into his § 2241 petition, which

relied on Alleyne

. His argument essentially runs as follows:

Richardson has been applied retroactively, and because there

exists a “nexus” between Alleyne and Richardson

, Richardson ’s

retroactivity should allow Poe’s Alleyne claims to proceed un

‐

der § 2241. (Appellant Br. 13–14.) Poe’s argument makes no

sense. In asserting such a “nexus,” it appears that Poe is trying

combine Richardson ’s retroactivity and statutory interpreta

‐

tion with Alleyne ’s recent timing to fulfill the requirements for

§ 2241. A petitioner may not “cherry

‐ pick” aspects of legally

unrelated Supreme Court cases in order to overcome

AEDPA’s procedural requirements. Therefore, we reject Poe’s

attempts.

B. 28 U.S.C. § 2255

In the alternative, Poe requests that this court construe his

petition as a request for leave to file a successive § 2255 peti

‐

tion.

But construing Poe’s petition as a successive one under

§ 2255 would be futile, which Poe concedes. (Appellant Br.

14.) As discussed, § 2255 allows a successive motion for “a10 No. 14

‐ 3513

new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously

unavailable.” 28 U.S.C. § 2255(h) (emphasis added). But we

have held that “ Alleyne is not retroactive on collateral re

‐

view.” Crayton

, 799 F.3d at 624; see also Simpson

, 721 F.3d at

876. Thus, if Poe filed a successive § 2255 petition relying on

Alleyne

, it would be futile.

III. C ONCLUSION

For the foregoing reasons, the district court’s denial of

Poe’s petition for a writ of habeas corpus is AFFIRMED.