Joseph Harden v. Stan Yates , 227 F. App'x 794 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 10, 2007
No. 06-12472 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00139-CV-OC-10GRJ
JOSEPH HARDEN,
Petitioner-Appellant,
versus
STAN YATES,
Warden,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 10, 2007)
Before BLACK, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Joseph Harden, a federal prisoner proceeding pro se, appeals the dismissal of
his petition for writ of habeas corpus filed under section 2241. In his petition,
Harden argues that the sentencing court erred when it imposed a sentence greater
than 20 years of imprisonment because the indictment failed to specify a drug
quantity. The district court dismissed Harden’s section 2241 petition with
prejudice because Harden failed to qualify for the savings clause provision of
section 2255. We affirm.
We review the denial of habeas relief de novo. Cook v. Wiley, 208 F.3d
1314, 1317 (11th Cir. 2000). “Typically, a petitioner collaterally attacks the
validity of his federal sentence by filing a petition under 28 U.S.C. § 2255. Under
the savings clause of [section] 2255, a prisoner may file a [section] 2241 petition if
an otherwise available remedy under [section] 2255 is inadequate or ineffective to
test the legality of his detention.” Sawyer v. Holder, 326 F.3d 1363, 1365 (11th
Cir. 2003) (citation omitted). “[T]he only sentencing claims that may conceivably
be covered by the savings clause are those based upon a retroactively applicable
Supreme Court decision overturning circuit precedent.” Wofford v. Scott, 177
F.3d 1236, 1245 (11th Cir. 1999).
The district court correctly dismissed Harden’s section 2241 petition because
Harden’s claim is not based on a retroactively applicable Supreme Court decision.
Harden argues that his sentence is fundamentally defective in the light of the
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decision in United States v. Cotton, 535 U.S. 625, 122 S. Ct. 1781 (2002), and that
Cotton is retroactively applicable, but this argument fails. Cotton did not establish
an avenue of relief but explained the standard of review to be applied on appeal to
an objection under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000),
that was not preserved in the district court. Harden’s sentencing argument is
actually based on Apprendi, which is not a retroactively applicable decision. See
McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001).
The dismissal of Harden’s petition under section 2241 is
AFFIRMED.
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