Carlos Pagan San-Miguel v.  DAN L. DOVE, Warden of FCI- Edgefield; UNITED STATES OF AMERICA

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 CARLOS PAGAN SAN-MIGUEL,
Petitioner-Appellant,
v.
No. 01-6115  DAN L. DOVE, Warden of FCI-
Edgefield; UNITED STATES OF
AMERICA,
Respondents-Appellees. 
Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
Joseph F. Anderson, Jr., Chief District Judge.
(CA-00-3389-7)
 CALVIN TYRONE YOUNG,
Petitioner-Appellant,
v. No. 01-6253 
JOYCE K. CONLEY, Warden,
Respondent-Appellee. 
Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Charles H. Haden II, Chief District Judge.
(CA-00-998-5)
Argued: April 2, 2002
Decided: May 21, 2002
Before WILKINSON, Chief Judge, KING, Circuit Judge,
and HAMILTON, Senior Circuit Judge.

-- 1 of 7 --

Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge King and Senior Judge Hamilton joined.
COUNSEL
ARGUED: Kelley Brooke Snyder, Student Counsel, Appellate Liti-
gation Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Charlottesville, Virginia, for Appellants. Demetra Daniel Lambros,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellees. ON BRIEF: Neal L. Walters, Appellate Litiga-
tion Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Char-
lottesville, Virginia, for Appellants. J. Strom Thurmond, Jr., United
States Attorney, Ann Agnew Cupp, Assistant United States Attorney,
Kasey Warner, United States Attorney, Michael L. Keller, Assistant
United States Attorney, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Appellees.
OPINION
WILKINSON, Chief Judge:
Petitioners Carlos Pagan San-Miguel and Calvin Tyrone Young
brought petitions for writs of habeas corpus under 28 U.S.C. § 2241
contending that their sentences for drug trafficking were illegal under
Apprendi v. New Jersey, 530 U.S. 466 (2000). The district courts dis-
missed their petitions. This court has repeatedly held that Apprendi
claims may not be raised on collateral review. See Burch v. Corcoran,
273 F.3d 577, 584 (2001), petition for cert. filed, No. 01-9358 (U.S.
Mar. 27, 2002); United States v. Sanders, 247 F.3d 139, 146, 151 (4th
Cir.), cert. denied, 122 S. Ct. 573 (2001). And this is as clear for
§ 2241 claims as it is for claims brought under 28 U.S.C. § 2255.
Because we find that petitioners cannot raise their Apprendi claims on
collateral review regardless of whether their complaints are brought
under § 2241 or § 2255, we affirm.
2 SAN-MIGUEL v. DOVE

-- 2 of 7 --

I.
A.
Petitioner Carlos Pagan San-Miguel helped mastermind a scheme
to smuggle cocaine from Columbia into Puerto Rico. San-Miguel was
arrested on March 27, 1991 after law enforcement officers observed
him unloading bales of cocaine from a boat onto the beach behind his
father’s home. He was indicted in Puerto Rico for, inter alia, the pos-
session of 232.8 kilograms of cocaine with the intent to distribute.
However, at trial, the judge instructed the jury that it did not have to
make a finding regarding the amount of narcotics San-Miguel pos-
sessed. On March 19, 1992, the jury found him guilty of three counts
of drug trafficking, including possession of cocaine with the intent to
distribute in violation of 21 U.S.C. § 841(a)(1). The court sentenced
him to concurrent thirty-year sentences for each of the drug traffick-
ing charges based, in part, on its finding that 232.8 kilograms of
cocaine were involved. San-Miguel also received a consecutive thirty-
year sentence for a firearms violation.
San-Miguel appealed his conviction and sentence. The First Circuit
affirmed. See United States v. Luciano-Mosquera, 63 F.3d 1142, 1146
(1st Cir. 1995). He then filed a motion under 28 U.S.C. § 2255 in
Puerto Rico district court. The court denied relief. The First Circuit
again affirmed and subsequently denied San-Miguel’s request to file
a second § 2255 motion.
On October 30, 2000, San-Miguel filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2241 in the district court in South
Carolina, where he is presently incarcerated. Unlike a § 2255 motion
which is filed in the petitioner’s trial and sentencing court, a § 2241
petition is filed in the district where the petitioner is incarcerated. In
his § 2241 petition, San-Miguel alleged that his sentence for the pos-
session of cocaine with the intent to distribute was illegal under
Apprendi because the jury did not determine the drug quantity
involved, yet his thirty-year sentence exceeded the twenty-year maxi-
mum term of imprisonment set forth in 21 U.S.C. § 841(b)(1)(C) for
violations based upon an unspecified drug quantity. The district court
adopted the magistrate judge’s recommendation that San-Miguel’s
petition should have been brought under § 2255, not § 2241, and that
3 SAN-MIGUEL v. DOVE

-- 3 of 7 --

he had not received the advance approval required to file a successive
§ 2255 claim. Therefore, the district court dismissed San-Miguel’s
petition. San-Miguel appeals.
B.
Petitioner Calvin Tyrone Young and his brother, Alvin, sold crack
cocaine out of their homes in North Carolina. As part of an under-
cover operation, several law enforcement agents purchased approxi-
mately thirty-one grams of crack cocaine from Young over four
months. Young and his brother were arrested after the agents made
a final purchase of ninety-one grams of crack cocaine from Alvin in
November 1996. Young was indicted on three counts of conspiracy
to distribute cocaine. In January 1997, as a result of a plea agreement,
the government dropped two of the distribution charges, while Young
pleaded guilty to one count of conspiracy to distribute crack cocaine.
Neither the count of the indictment to which he pleaded guilty nor the
plea agreement specified the quantity of drugs involved.
At sentencing, the North Carolina district court determined that the
quantity of drugs involved in the controlled purchases, 122.7 grams,
provided the most reliable guide to the amount of drugs at issue and
it used that amount to calculate Young’s sentence.1 The court also
concluded that Young should be classified as a career offender. Based
on these findings, the district court sentenced Young to thirty years
in prison. Young appealed and this court affirmed. Young then filed
a motion for collateral relief under 28 U.S.C. § 2255 in North Caro-
lina district court, which was also denied.
On October 25, 2000, Young filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2241 in West Virginia district court, where
1In reviewing Young’s § 2241 petition, the West Virginia district court
mistakenly believed that Young’s sentence was based on 16.5 kilograms
of crack. This mistake appears to be the result of Young’s reference in
his petition to Paragraph 16 of his Presentence Report which reported
that Young was responsible for 16.5 kilograms of "crack." However, the
North Carolina district court that sentenced Young struck Paragraph 16
from the Presentence Report and the judgment clearly states that "the
defendant is held accountable for 122.7 grams of cocaine base ‘crack.’"
4 SAN-MIGUEL v. DOVE

-- 4 of 7 --

he is incarcerated. Young contended that his sentence was illegal
under Apprendi because no drug quantity was specified in the count
of the indictment to which he pleaded guilty, yet his thirty-year sen-
tence exceeded the twenty-year maximum penalty set forth in 21
U.S.C. § 841(b)(1)(C) for violations based upon an unspecified drug
quantity. The district court found that Young’s claim should have
been brought under § 2255. Young v. Conley, 128 F. Supp. 2d 354,
357 (S.D.W.Va. 2001). And because Young had not received permis-
sion to file a successive § 2255 motion, nor would he meet the
requirements for filing such a motion, the district court dismissed
Young’s petition. Id. at 358. Young appeals.
II.
Petitioners contend that the district courts wrongly dismissed their
Apprendi claims. We disagree. We have consistently held that
Apprendi does not apply retroactively on collateral review. Both San-
Miguel and Young were convicted long before Apprendi was decided
and both pursued direct appeals in which they did not raise Apprendi
claims. Instead, petitioners raised their Apprendi claims for the first
time in their respective § 2241 habeas petitions. As such, these claims
are barred by our decisions in Burch, 273 F.3d at 584, and Sanders,
247 F.3d at 146, 151.
In Apprendi, the Supreme Court held 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." Apprendi, 530 U.S. at
490. We held in Sanders that the Apprendi Court had adopted a new
rule of criminal procedure dictating "what fact-finding procedure
must be employed to ensure a fair trial." Sanders, 247 F.3d at 147.
And new rules of constitutional criminal procedure are not to be
applied retroactively unless the Supreme Court has itself held that the
rule is retroactive, see Tyler v. Cain, 533 U.S. 656, 663 (2001), or
"the Court’s holdings logically permit no other conclusion than that
the rule is retroactive." Id. at 669 (O’Connor, J., concurring).
The Supreme Court did not make the Apprendi rule retroactive in
that decision or in any subsequent decision. And in Sanders, we con-
cluded that the Apprendi rule did not fall into either of the two excep-
5 SAN-MIGUEL v. DOVE

-- 5 of 7 --

tions to the nonretroactivity rule set forth in Teague v. Lane, 489 U.S.
288 (1989). Sanders, 247 F.3d at 148, 151. Apprendi neither forbids
criminal punishment of certain primary conduct nor is it such a "wa-
tershed" change in criminal procedure that it alters our understanding
of the bedrock elements that are necessary to ensure a fair proceeding.
Sanders, 247 F.3d at 148-51; Burch, 273 F.3d at 584; see also Tyler,
533 U.S. at 669-70 (O’Connor, J., concurring) (discussing the two
Teague exceptions). Since Apprendi does not meet these criteria, it
does not apply retroactively to cases on collateral review. Sanders,
247 F.3d at 146, 151; see also Burch, 273 F.3d at 584.
The fact that Sanders involved a § 2255 petition and petitioners are
seeking review under § 2241 does not alter the conclusion that
Apprendi does not apply retroactively to their claims. Section 2241 is
simply another avenue for petitioners seeking collateral review of
criminal convictions. In fact, § 2255 grew out of and was intended to
replace § 2241 in the vast majority of cases. See United States v. Hay-
man, 342 U.S. 205, 215-19 (1952). The interrelatedness of these two
provisions is demonstrated by the fact that petitioners are prevented
from filing a § 2241 petition unless they fall within the savings clause
of § 2255.2
Nothing in Teague confines the term "collateral review" to habeas
review of state court convictions. See United States v. Martinez, 139
F.3d 412, 416 (4th Cir. 1998) (holding that Teague applies to federal
prisoners’ actions for collateral relief under 28 U.S.C. § 2255); see
also United States v. Sanchez-Cervantes, 282 F.3d 664, 667 n.9 (9th
Cir. 2002) (citing cases). The nonretroactivity rule is grounded "both
2Petitioners note that claims fall within the savings clause of § 2255
when a § 2255 motion is "inadequate or ineffective to test the legality"
of detention. 28 U.S.C. § 2255. However, the fact that petitioners are
barred from filing a successive § 2255 motion does not render § 2255
"inadequate or ineffective." See In re Vial, 115 F.3d 1192, 1194 n.5 (4th
Cir. 1997). Moreover, it is doubtful petitioners fall within the savings
clause of § 2255 both because their claims are not constitutional in nature
and because Apprendi did not make petitioners’ drug trafficking non-
criminal. See In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000). Finally,
and most significantly, any § 2241 petition runs afoul of Burch and
Sanders for the reasons expressed herein.
6 SAN-MIGUEL v. DOVE

-- 6 of 7 --

in the purposes of habeas corpus and in the values of federalism and
finality." Martinez, 139 F.3d at 415. Habeas relief "serves as an incen-
tive . . . for states and federal courts to faithfully apply federal law."
Id. And "[t]his purpose is served sufficiently by requiring courts to
apply federal law as it exists at the time a defendant’s conviction
becomes final." Id.
Similarly, the nonretroactivity rule serves the values of federalism
and finality by not requiring states to constantly relitigate convictions
that satisfied all of the constitutional requirements in place at the time
the convictions became final. Id. at 416. These values support the
application of the Teague nonretroactivity rule to both state and fed-
eral prisoners regardless of which statutory provision they utilize to
file their petition.
The other circuit courts that have considered the question have
declined to give Apprendi retroactive effect. See Sanchez-Cervantes,
282 F.3d at 671; McCoy v. United States, 266 F.3d 1245, 1258 (11th
Cir. 2001), petition for cert. filed, No. 01-8115 (U.S. Dec. 26, 2001);
United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001), cert. denied,
122 S. Ct. 848 (2002). We have already held that Apprendi does not
apply collaterally in two different contexts — review of a federal drug
sentence in Sanders and review of a state capital conviction in Burch.
The fact that petitioners are attempting to bring their petitions under
§ 2241 does not alter the clear holdings in both Sanders and Burch.
Therefore, petitioners may not raise their Apprendi claims in a peti-
tion for a writ of habeas corpus under § 2241 or in a subsequent
§ 2255 motion.
III.
The judgments of the district courts are therefore
AFFIRMED.
7 SAN-MIGUEL v. DOVE

-- 7 of 7 --