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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-14997
Non-Argument Calendar
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D.C. Docket No. 5:10-cv-00398-JDW-TBS
JIMMY LEE FIELDS,
lllllllllllllllllllllllllllllllllllllll lPetitioner - Appellant,
versus
WARDEN, FCC COLEMAN - USP 1,
llllllllllllllllllllllllllllllllllllllll Respondent - Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(July 19, 2012)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
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Jimmy Lee Fields, a federal prisoner proceeding pro se, appeals the district
court’s dismissal of his 28 U.S.C. § 2241 petition for writ of habeas corpus. The
district court dismissed Fields’s petition because he had previously been denied
relief on a 28 U.S.C. § 2255 motion, and he had not demonstrated that he was
entitled to pursue his claims under 28 U.S.C. § 2255(e)’s savings clause. Fields is
currently serving a life sentence for conspiracy to possess with intent to distribute
cocaine and cocaine base.
We review de novo the availability of habeas relief under 28 U.S.C. § 2241.
Cook v. Wiley, 208 F.3d 1314, 1317 (11th Cir. 2000). 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).
However, under the limited circumstances stated in § 2255(e)’s savings clause, a
federal prisoner may file a habeas petition pursuant to § 2241. See 28 U.S.C. §§
2241(a), 2255(e). Relief under § 2241 is only available if the prisoner can show
that a § 2255 proceeding is “inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255(e); McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir.
1979) (per curiam). The statutory bar that prohibits a prisoner from filing a
second or successive § 2255 motion without prior authorization is not a sufficient
ground to show that § 2255’s remedy is inadequate or ineffective for the purposes
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of the savings clause. Gilbert v. United States, 640 F.3d 1293, 1308 (11th Cir.
2011) (en banc), cert. denied, 132 S. Ct. 1001 (2012).
We have held that § 2255 remedies may be considered inadequate when (1)
the petitioner’s claim is based on a retroactively applicable Supreme Court
decision; (2) that decision’s holding established that the prisoner was convicted of
a “nonexistent offense”; and (3) circuit law foreclosed the prisoner from bringing
his claim at the earlier time it should have been raised—at trial, appeal, or in the
first § 2255 motion. Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999); but
see Gilbert, 640 F.3d at 1319. A prisoner must establish all three prongs of this
test before we will consider whether the petitioner can also establish actual
innocence of the crime for which he has been convicted. Wofford, 177 F.3d at
1244.
Fields argues that the Supreme Court’s decisions in DePierre v. United
States, 131 S. Ct. 2225 (2011) and Carachuri-Rosendo v. Holder, 130 S. Ct. 2577
(2010) are retroactive and establish that he was convicted of a nonexistent offense.
In DePierre, the Supreme Court held that the term “cocaine base,” as used in 21
U.S.C. § 841(b)(1), refers to not just crack cocaine, but any cocaine in its
chemically basic form. 131 S. Ct. at 2227–28. In Carachuri-Rosendo, the
Supreme Court held—in the context of an immigration proceeding—that “when a
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defendant has been convicted of a simple possession offense that has not been
enhanced based on the fact of a prior conviction, he has not been ‘convicted’
under [8 U.S.C.] § 1229b(a)(3) of a ‘felony punishable’ as such ‘under the
Controlled Substances Act,’ 18 U.S.C. § 924(c)(2).” 130 S. Ct. at 2589.
Here, the indictment against Fields alleged that he distributed “cocaine
base” and the evidence showed that Fields’s offense had involved crack cocaine.
Fields was convicted of conspiracy to possess with intent to distribute cocaine and
cocaine base, and he received a sentence of life imprisonment because he had been
convicted of two prior drug violations. Fields has not shown that DePierre and
Carachuri-Rosendo are retroactive, nor has he demonstrated that either applies to
the facts of his case to demonstrate that he was convicted of a “nonexistent
offense.”
Fields also argues that the Fair Sentencing Act (“FSA”) applies to him. The
Supreme Court recently held that the FSA applies to those who committed acts
prior to the passage of the FSA, but were sentenced following the August 3, 2010
effective date of the FSA. See Dorsey v. United States, Nos. 11-5683, 11-5721,
2012 WL 2344463, at *15 (U.S. June 21, 2012). However, Fields was sentenced
prior to August 3, 2010, and thus the FSA does not retroactively apply to him.
Because Fields has failed to demonstrate that he meets the criteria of the
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savings clause of § 2255(e), he cannot proceed with his claims under a § 2241
petition.
AFFIRMED.
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