Nelson Cartagena-Merced v. USA, No. 14-13417 (11th Cir. 2015)

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Case: 14-13417 Date Filed: 04/06/2015 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 14-13417 Non-Argument Calendar ________________________ D.C. Docket No. 1:14-cv-21586-BB NELSON CARTAGENA-MERCED, Petitioner - Appellant, versus UNITED STATES OF AMERICA, Respondent - Appellee. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (April 6, 2015) Before JULIE CARNES, JILL PRYOR and FAY, Circuit Judges. PER CURIAM: Case: 14-13417 Date Filed: 04/06/2015 Page: 2 of 6 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 2 Case: 14-13417 Date Filed: 04/06/2015 Page: 3 of 6 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 3 Case: 14-13417 Date Filed: 04/06/2015 Page: 4 of 6 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 4 Case: 14-13417 Date Filed: 04/06/2015 Page: 5 of 6 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 5 Case: 14-13417 Date Filed: 04/06/2015 Page: 6 of 6 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. 6

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