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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15956
Non-Argument Calendar
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D.C. Docket No. 5:12-cv-00305-JSM-PRL
ALLEN JAMES STARKS,
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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(December 19, 2013)
Before TJOFLAT, MARTIN and FAY, Circuit Judges.
PER CURIAM:
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Allen Starks, proceeding pro se, appeals the district court’s dismissal of his
petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2241. After
review of the record and the parties’ arguments, we affirm.
I.
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). “[W]e may affirm for any reason supported by the record, even if not relied
upon by the district court.” United States v. Al-Arian, 514 F.3d 1184, 1189 (11th
Cir. 2008) (quotation marks omitted). A federal prisoner must ordinarily bring any
collateral attacks on the validity of his conviction or sentence under 28 U.S.C.
§ 2255. Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir. 2003). Once a federal
prisoner has filed a § 2255 motion, as Starks has, he may file a second or
successive § 2255 motion only in two very limited circumstances that do not apply
here. See 28 U.S.C. § 2255(h). Separately, the “savings clause” of
§ 2255(e) permits a federal prisoner to file a habeas petition pursuant to § 2241
when the remedy by § 2255 motion “is inadequate or ineffective to test the legality
of his detention.” Id. §§ 2241(a), 2255(e). However, one of the minimum
requirements of a § 2241 claim is that it “must be based upon a retroactively
applicable Supreme Court decision.” Williams v. Warden, Fed. Bureau of Prisons,
713 F.3d 1332, 1343 (11th Cir. 2013).
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II.
Starks is a prisoner at the Coleman Federal Correctional Complex in the
Middle District of Florida. In 1991, a federal jury in the Southern District of
Alabama found Starks guilty of conspiracy to possess cocaine and cocaine base
with the intent to distribute (count one), structuring financial transactions to avoid
reporting requirements (count three), and money laundering (counts four and five).
Count one of the superseding indictment charged that Starks had conspired to
possess with the intent to distribute “more than five (5) kilograms of cocaine and
more than fifty (50) grams of a mixture and substance containing a detectable
amount of cocaine which contains cocaine base” in violation of 21 U.S.C.
§§ 841(a)(1) and 846. Starks received a life sentence on count one, a concurrent
60-month sentence on count three, and concurrent 240-month sentences on counts
four and five. We focus on count one because of its relevance to Starks’s § 2241
petition.
Starks unsuccessfully pursued relief under 28 U.S.C. § 2255 in the
sentencing court in 2001.1 Starks v. United States, No. 01-480 (S.D. Ala. filed
June 28, 2001); id. (Order filed Aug. 21, 2001). In his current § 2241 petition,
Starks argues that he is actually innocent of violating 21 U.S.C.
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Starks also sought a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and Amendment
706, but because of his drug quantity level, together with his leadership role and obstruction of
justice enhancements, this amendment did not change his guideline range of life imprisonment.
United States v. Starks, 409 F. App’x 264, 265–66 (11th Cir. 2010). He was therefore not
entitled to relief on account of Amendment 706.
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§ 841(b)(1)(A) and that his life sentence exceeds the 20-year statutory maximum
authorized by Congress for a violation of § 841(b)(1)(C). In support of his
argument that he is entitled to file a § 2241 petition, Starks relies on two Supreme
Court cases, DePierre v. United States, ___ U.S. ___, 131 S. Ct. 2225 (2011), and
United States v. O’Brien, 560 U.S. 218, 130 S. Ct. 2169 (2010). After briefing,
the district court dismissed Starks’s § 2241 petition because these cases are not
retroactively applicable and do not render Starks actually innocent of his offense.
III.
Because Starks misinterprets the holding of DePierre, and because neither
DePierre nor O’Brien apply retroactively, he is not entitled to relief under § 2241.
First, in DePierre, the Supreme Court held that “the term ‘cocaine base’ as used in
[21 U.S.C.] § 841(b)(1), means not just crack cocaine, but cocaine in its chemically
basic form.” 131 S. Ct. at 2237. Based on DePierre’s interpretation of the term
“cocaine base,” Starks asserts he was convicted and sentenced for a non-existent
substance and thus for conduct that did not constitute a crime. Starks relies on the
phrasing in his indictment that charged him with possessing with intent to
distribute “more than five (5) kilograms of cocaine and more than fifty (50) grams
of a mixture and substance containing a detectable amount of cocaine which
contains cocaine base.”
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Even assuming that DePierre applies retroactively, we cannot say that
DePierre shows that Starks was convicted for a non-existent substance or offense.
Contrary to Starks’s contentions, DePierre did not narrow the interpretation of
§ 841(b)(1)(A), but instead held that “cocaine base” includes not only “crack
cocaine,” but all cocaine in its chemically basic form. DePierre, 131 S. Ct. at
2237. For that reason, DePierre did not decriminalize Starks’s conduct and the
language in Starks’s indictment still falls within the definition established in
DePierre, as well as the relevant federal drug statutes. See 21 U.S.C. §
841(b)(1)(A)(ii)(II) (“cocaine”); id. § 841(b)(1)(A)(iii) (“mixture or substance
described in clause [§ 841(b)(1)(A)](ii) which contains cocaine base”).
Second, to the extent Starks is making a claim based on the reasoning in
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), such claims are not
retroactive. Starks argues that he is “actually innocent” of the sentence
enhancement in 21 U.S.C. § 841(b)(1)(A)(ii) and (iii), because his jury did not find
the type and quantity of controlled substances in his offense. To make this
argument, he relies on DePierre, O’Brien and Alleyne v. United States, ___ U.S.
___, ___, 133 S. Ct. 2151, 2155 (2013) (applying rule in Apprendi v. New Jersey
and holding “any fact that increases the mandatory minimum is an ‘element’ that
must be submitted to the jury”).
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Although the jury found Starks “GUILTY as charged in Count 1 of the
indictment,” the jury was specifically instructed that “[t]he evidence in this case
need not establish that the amount or quantity of cocaine was as alleged in the
indictment[, b]ut only that a measureable amount of cocaine was . . . the subject of
the acts charged in the indictment.” In light of the language of the indictment and
the district court’s instructions, it is evident that the jury was required to find drug
type, but not drug quantity. Under current law, established since Apprendi was
decided in 2000, this is constitutional error. See United States v. Sanders, 668 F.3d
1298, 1309 (11th Cir. 2012) (“[T]he enhanced statutory maximum penalties in
§ 841(b) cannot apply unless the jury determines the drug type and quantity
involved in the overall drug conspiracy offense.”).
The problem for Starks is that his argument about the jury’s failure to find
drug quantity is at its core based on Apprendi. Apprendi established that “[o]ther
than the fact of a prior conviction, any fact 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. at 490, 120 S. Ct. at 2362–63. In light of
Apprendi, we held that it is constitutional error to increase a defendant’s sentence
based on drug quantity beyond the 20-year statutory maximum in 21 U.S.C.
§ 841(b)(1)(C) unless it is submitted to a jury and proven beyond a reasonable
doubt. United States v. Sanchez, 269 F.3d 1250, 1270 (11th Cir. 2001) (en banc).
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But we have also held that the Apprendi rule does not apply retroactively. See
Dohrmann v. United States, 442 F.3d 1279, 1281–82 (11th Cir. 2006); McCoy v.
United States, 266 F.3d 1245, 1258 (11th Cir. 2001) (“[W]e hold that the new
constitutional rule of criminal procedure announced in Apprendi does not apply
retroactively on collateral review.”).
The decisions in Alleyne and O’Brien are based on Apprendi. See Alleyne,
133 S. Ct. at 2155 (holding that the distinction between “facts that increase the
statutory maximum and facts that increase only the mandatory minimum . . . is
inconsistent with . . . Apprendi”); O’Brien, 560 U.S. at 224, 235 130 S. Ct. at
2174–75, 2180 (applying Apprendi rule and holding that whether firearm was a
“machinegun” under the federal firearms statute, 18 U.S.C. § 924(c)(1)(B)(ii), is an
element of the offense that must be proved to a jury beyond a reasonable doubt).
Consequently, Starks, whose conviction became final long before Apprendi,
Alleyne, and O’Brien were decided, cannot now collaterally challenge his
conviction based on his jury’s failure to find drug quantity, because the holding in
Apprendi does not apply retroactively.
For these reasons, we find that the district court did not err by dismissing
Starks’s § 2241 petition.
AFFIRMED.
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