Joseph HARDEN, Petitioner-Appellant, v. Stan YATES, Warden, Respondent-Appellee, 227 F. App'x 794

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 faded to specify a drug quantity. The district court dismissed Harden’s

section 2241 petition with prejudice because Harden faded 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 decision in United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (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, 147 L.Ed.2d 435 (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.