Case: 13-10157    Date Filed: 09/18/2013   Page: 1 of 7


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-10157
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 5:12-cv-00596-JDW-PRL



HERNANDEZ DANIELS,

                                                           Petitioner-Appellant,

                                    versus

WARDEN, FCC COLEMAN - USP I,

                                                         Respondent-Appellee.

                      ________________________

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

                            (September 18, 2013)

Before TJOFLAT, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:
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      Hernandez Daniels, a pro se federal prisoner, appeals the district court’s

dismissal of his 28 U.S.C. § 2241 federal habeas corpus petition challenging the

legality of his sentence in light of DePierre v. United States, 

(2011). Daniels, who previously had filed an unsuccessful 28 U.S.C. § 2255

motion to vacate, claimed in his § 2241 petition that his sentence for a crack

cocaine offense was unlawful because DePierre ruled that the term “cocaine base”

in 21 U.S.C. § 841(b)(1)(A)(iii) was not synonymous with crack cocaine. The

district court dismissed his petition after concluding that the claim did not satisfy

the 28 U.S.C. § 2255(e) savings clause because Daniels had not shown that

DePierre applied retroactively or rendered him actually innocent of his offenses.

On appeal, Daniels argues that: (1) he could bring a petition under § 2241 because

he satisfied the three-part test in Wofford v. Scott, 

(11th Cir. 1999),

and, therefore, had shown that the savings clause applied to his claim; (2) based on

the Supreme Court’s narrow interpretation of “cocaine base” in DePierre, he stands

convicted of an offense involving a “non-existent substance” because his

indictment misrepresented the nature of his charges by stating that “cocaine base”

was commonly known as crack; and (3) his conviction violates the Due Process

Clause because he is actually innocent, and that he is entitled to an evidentiary

hearing. After thorough review, we affirm.




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      The availability of habeas relief under 28 U.S.C. § 2241 presents a question

of law that we review de novo. Cook v. Wiley, 

, 1317 (11th Cir.

2000). Typically, collateral attacks on the validity of a federal conviction or

sentence must be brought under 28 U.S.C. § 2255. Sawyer v. Holder, 

, 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, 

, 1352 (11th Cir. 2008).

      The “savings clause” of § 2255(e), however, permits a federal prisoner,

under very limited circumstances, to file a habeas petition pursuant to § 2241.

. 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 provided for under § 2255 is “inadequate or

ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). We recently

held that the savings clause is a jurisdictional provision, meaning 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, 

, 1339-40 (11th Cir. 2013).

      When a prisoner has previously filed a § 2255 motion to vacate, he must

apply for and receive permission from us before filing a successive § 2255 motion.

28 U.S.C. §§ 2244(b)(3), 2255(h). Standing alone, the restrictions on successive §


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2255 motions do not render that section “inadequate or ineffective” within the

meaning of the savings clause. Gilbert v. United States, 

, 1308 (11th

Cir. 2011) (en banc), cert. denied, 

(2012).         Consequently, a

petitioner who has filed a previous § 2255 motion and been denied may not

circumvent the Antiterrorism Effective Death Penalty Act’s (“AEDPA”)

successive-motion rule simply by filing a petition under § 2241. 

of the § 2255(e) savings clause has not been fully defined, we’ve noted, in

dicta, that a petitioner meets the requirements of the savings clause when: (1) the

petitioner’s claim is based on a retroactively applicable Supreme Court decision;

(2) the holding of that Supreme Court decision establishes that the petitioner was

convicted of a nonexistent offense; and (3) circuit law squarely foreclosed the

claim at the time it otherwise should have been raised at the petitioner’s trial, on

appeal, or in his first § 2255 motion. 

; see also Turner

v. Warden Coleman FCI (Medium), 

, 1333-34 (11th Cir. 2013)

(noting that the Wofford test was dicta).

      In Williams, we recently interpreted Wofford’s holding as establishing two

necessary, if not sufficient, conditions for a sentencing claim to be viable under §

2255(e)’s savings 

. First, the claim must be based on a

retroactively applicable Supreme Court decision. 

Court “must have overturned a circuit precedent that squarely resolved the claim so


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that the petitioner had no genuine opportunity to raise it at trial, on appeal, or in his

first § 2255 motion.” 

a petitioner may not argue the merits of his

claim until he has “open[ed] the portal” to a § 2241 proceeding by demonstrating

that the savings clause applies to his claim. 

n.3. “Even

if a petitioner succeeds in making Wofford’s three-part showing, he would then

need to demonstrate ‘actual innocence’ of the crime for which he was convicted to

demonstrate an entitlement to relief.” 

n.2. Actual

innocence means factual innocence, not legal insufficiency. Bousley v. United

States, 

, 623 (1998).

      Here, the district court did not err in dismissing Daniels’s petition. The

claim that Daniels raises in his § 2241 petition addresses the legality of his

sentence, not the execution of his sentence, and, therefore, it was within the scope

of § 2255, not § 2241. See 

. Because Daniels already

filed a § 2255 motion that was denied, he was not permitted to circumvent the

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

2241. See 

. In order to proceed under § 2241, Daniels

needed to show that § 2255 was “inadequate or ineffective” to challenge the

legality of his detention. 28 U.S.C. § 2255(e).

      Daniels’s reliance on the Supreme Court’s decision in DePierre to argue that

§ 2255 is “inadequate and ineffective” to challenge the legality of his detention is


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unavailing.   Contrary to Daniels’s contentions, DePierre did not narrow the

interpretation of § 841(b)(1)(A)(iii) and hold that “cocaine base” can never be

“crack cocaine,” but instead held that “cocaine base” includes not only “crack

cocaine,” but all cocaine in its chemically basic form. See 

(“[T]he term ‘cocaine base’ as used in § 841(b)(1) means not just ‘crack

cocaine,’ but cocaine in its chemically basic form.”). Accordingly, DePierre did

not decriminalize Daniels’s conduct, nor indicate that he was convicted of a non-

existent offense or a “non-existent substance.” See 

. In

any event, DePierre did not overturn “a circuit precedent that squarely resolved the

claim so that the petitioner had no genuine opportunity to raise it at trial, on appeal,

or in his first § 2255 motion,” since it merely involved the interpretation of a

substantive criminal statute. See 

; see also 

.

      Finally, although Daniels argues that his conviction violates the Due Process

Clause because he is actually innocent and that he was entitled to an evidentiary

hearing, these arguments are moot because he has not met the threshold

requirement for showing that the § 2255(e) savings clause applies. Since Daniels

fails to show that his claim satisfied the savings clause, he cannot proceed under §

2241. See 28 U.S.C. § 2255(e); 

. In short, the district




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court did not have jurisdiction over Daniels’s § 2241 petition, and did not err in

dismissing the petition. See 

.

      AFFIRMED.




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