                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                                                                FILED
                      ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                               July 14, 2005
                             No. 04-15442
                                                         THOMAS K. KAHN
                         Non-Argument Calendar               CLERK
                       ________________________

                D. C. Docket No. 04-00101-CV-5-SPM-AK

WILLIAM BERNARD CREWS,


                                                          Petitioner-Appellant,

                                  versus

WETZEL,

                                                        Respondent-Appellee.


                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      _________________________

                              (July 14, 2005)

Before ANDERSON, CARNES and FAY, Circuit Judges.

PER CURIAM:
      William Bernard Crews, a federal prisoner proceeding pro se, appeals the

denial of his petition for writ of habeas corpus, 28 U.S.C. § 2241. He argues that

the district court erred in finding that he had failed to show that 28 U.S.C. § 2255

was inadequate or ineffective for testing the legality of his detention. For the

reasons stated more fully below, we affirm.

      Crews, serving a 188-month prison term for conspiracy to possess with

intent to distribute controlled substances, 21 U.S.C. § 846, claimed in his petition

that his sentence, imposed after he pled guilty, violated the Ex Post Facto Clause of

the Constitution because his sentence was considered “non-paroleable” under an

amended version of 21 U.S.C. § 846 that had not been operative at the time he

committed his offense. Therefore, he argued the Bureau of Prisons was improperly

computing his sentence by applying the non-parole provisions of a statute that

should not apply to his conviction.

      In his petition, Crews admitted that he had (1) never filed a direct appeal of

his sentence or conviction and (2) previously filed two separate motions to vacate,

alter, or amend his federal sentence pursuant to 28 U.S.C. § 2255, each time

arguing that he should have been “sentenced under the old law.” Both of his

§ 2255 motions were denied. Crews’s brief in support of his petition stated that (1)

he was charged with distributing cocaine base between March 12, 1986, and April



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1988; (2) on April 4, 1990, he entered into a plea agreement indicating that he

faced a prison term of 10 years to life; (3) on March 12, 1991, he was sentenced

pursuant to U.S.S.G. § 2D1.1(a)(3) to 188 months’ imprisonment; (4) his two

previous § 2255 motions had been dismissed; (5) he had attempted to seek

administrative relief from the Bureau of Prisons (“BOP”), arguing that his sentence

should be corrected because his sentence was imposed under the “new” penalty

provisions of 21 U.S.C. § 846, as amended by Congress effective November 18,

1988, instead of the “old” version of 21 U.S.C. § 846, in force at the time his

conduct of conviction had ended; and (6) as a result of the BOP’s continued use of

the “new” instead of the “old” law, he was being rendered ineligible for parole or

good time for parole in violation of his rights.

      A magistrate issued a report and recommended that Crews’s petition be

dismissed with prejudice. The magistrate found that, on July 1, 1992, Crews had

filed a § 2255 motion to vacate, claiming ineffective assistance of counsel and that

he “should have been sentenced under the old law.” It further found that, based on

Crews’s pleadings, Crews had filed a second motion or petition alleging that he

should have been sentenced under the “old law,” but it was impossible to discern

from the documents the court had whether Crews was referring to a second § 2255

motion or a § 2241 petition that Crews had filed in the Northern District of West



                                           3
Virginia, which was denied as a successive § 2255 motion and dismissed without

prejudice.

      The report found that the issue presented was whether the “savings clause”

of § 2255, which permits a federal prisoner to seek § 2241 habeas relief when a

motion to vacate is “inadequate or ineffective to test the legality . . . of detention,”

afforded Crews any relief. It found that the clause did not, as Crews’s claim failed

to satisfy any of the criteria for permitting a § 2241 petition under the “savings

clause” of § 2255. The report concluded that Crews’s claims were the same claims

that previously had been presented and were all sentencing claims that either

should have been presented at sentencing or direct appeal or were constitutional

challenges that should have been raised in Crews’s § 2255 motion. Thus, the

magistrate found that Crews’s petition merely sought to circumvent the restrictions

imposed on successive § 2255 motions, and the savings clause did not exist for

such a purpose. Therefore, the magistrate recommended that Crews’s petition be

dismissed with prejudice.

      Crews objected to the report, arguing that he was not trying to circumvent

the requirements for filing a second § 2255 motion, but that instead he was

challenging the BOP’s computation/execution of his sentence, a permissible basis

for a § 2241 petition, citing Martorana v. United States, 873 F.2d 283, 285 (11th



                                            4
Cir. 1989). The district court, after conducting a de novo review of the

magistrate’s report and Crews’s objections, adopted the report and

recommendation, denied Crews’s petition for habeas relief, and dismissed the case

with prejudice.

      On appeal, Crews argues that it was improper for the district court to apply

AEDPA to his claim because his initial 2255 motion was filed in 1992, before

AEDPA’s passage. Thus, he argues that because he was unable to file a second or

successive 2255 motion claiming actual innocence of the sentence he is presently

serving, any § 2255 relief is inadequate and ineffective to test the legality of his

detention, and he should be permitted to file a § 2241 petition. He further contends

that sentencing for conspiracies prior to the November 18, 1988, amendment was

governed by United States v. Rush, 874 F.2d 1513 (11th Cir. 1989), and that any

procedural default for failing to raise his claims on direct appeal or in a § 2255

motion is overcome because he is actually innocent of the sentence he agreed to in

his plea agreement. Crews also argues that the sentencing provisions to which he

pled in his agreement represented a version of 21 U.S.C. § 846 to which he could

not have pled guilty because those sentencing provisions did not exist at the time

he committed his offense. Lastly, Crews argues in his reply brief that the

government’s attempt to construe his § 2241 petition as a second or successive



                                           5
§ 2255 motion should be dismissed because it would be an unfair retroactive

application of AEDPA, citing In re Jones, 226 F.3d 328 (4th Cir. 2000). (Id.). He

then restates his original arguments. (Id. at 2-4).

      We review de novo a district court’s denial of habeas relief under § 2241.

Skinner v. Wiley, 355 F.3d 1293, 1294 (2004). While 28 U.S.C. § 2255 is the

primary method of collateral attack for federal prisoners, it is possible for a federal

prisoner to attack his conviction and sentence through § 2241 as opposed to

§ 2255. Pursuant to the “savings clause” of 28 U.S.C. § 2255:

      An application for a writ of habeas corpus in behalf of a prisoner who
      is authorized to apply for relief by motion pursuant to this section,
      shall not be entertained if it appears that the applicant has failed to
      apply for relief, by motion, to the court which sentenced him, or that
      such court has denied him relief, unless it also appears that the remedy
      by motion is inadequate or ineffective to test the legality of his
      detention.

28 U.S.C. § 2255 ¶ 5 (emphasis supplied). Thus, a § 2241 petition attacking

custody resulting from a federally imposed sentence may only be entertained if the

petitioner establishes that the remedy provided for under § 2255 is inadequate or

ineffective. See McGhee v. Hanberry, 609 F.2d 9, 10-11 (5th Cir. 1979) (holding

that a prior unsuccessful § 2255 motion is insufficient on its own to establish the

ineffectiveness of § 2255 remedies). The burden of showing the inadequacy or

ineffectiveness of the § 2255 remedy rests with the petitioner. Id. at 10.



                                           6
      We have held that to determine whether a § 2255 motion is inadequate or

ineffective to test the legality of prisoner’s detention under the “savings clause,” a

prisoner must show:

      (1) that [his] claim is based upon a retroactively applicable Supreme
      Court decision; (2) the holding of that Supreme Court decision
      establishes the petitioner was convicted for a nonexistent offense; and,
      (3) circuit law squarely foreclosed such a claim at the time it
      otherwise should have been raised in the petitioner's trial, appeal, or
      first § 2255 motion.

Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999).

      Like in Wofford, Crews “had a procedural opportunity to raise . . . his claims

and have [them] decided either at trial or on appeal.” Id. at 1245. Therefore, under

Wofford, Crews “is attempting to use § 2241 simply to escape the restrictions on

second or successive § 2255 motions.” Id. Crews has failed to point to any

Supreme Court or Circuit decision, retroactive or otherwise, indicating that he was

convicted for a non-existent crime and, therefore, actually innocent. See Sawyer v.

Holder, 326 F.3d 1363, 1366 (11th Cir. 2003) (applying the test from Wofford and

concluding that a petitioner, under the “non-existent offense” prong must

demonstrate that he is actually innocent).

      However, Crews urges us to follow In re Jones, 226 F.3d 328 (4th Cir. 2000)

and White v. Fiore, 523 U.S. 23, 120 S.Ct. 469, 145 L.Ed.2d 353 (1999). Neither

is apposite to this case. The Fourth Circuit in Jones first addressed whether the

                                             7
application of AEDPA’s gatekeeping provisions for filing second or successive

applications was impermissibly retroactive where a prisoner had filed his first

§ 2255 motion prior to the enactment of AEDPA. Jones, 226 F.3d at 331. The

Fourth Circuit held it was not because the petitioner there failed to demonstrate any

reliance on the continued existence of pre-AEDPA law or that he might have acted

differently had he known that any subsequent § 2255 motion would be subject to

the new gatekeeping provisions. Id. at 332. The same is true in the instant case,

and the application of AEDPA’s gatekeeping provisions are not impermissibly

retroactive to Crews’s claims.

      However, applying a slightly different test than the one in Wofford, the

petitioner was allowed to proceed under § 2241 because the court held that § 2255

was ineffective and inadequate to test the legality of his conviction. Id. at 333-34.

The facts of Jones, however, are distinguishable in several material aspects. There,

the petitioner was convicted under 18 U.S.C. § 924(c)(1) (using and carrying a

firearm during and in a drug offense), filed a direct appeal, and filed a § 2255

motion prior to the passage of AEDPA. Id. at 329-30. Subsequently, the Supreme

Court overruled Fourth Circuit precedent defining what the government was

required to prove under the “use” prong of § 924(c)(1), but the petitioner, because

of the recently enacted AEDPA, would not be able to satisfy the gatekeeping



                                           8
provisions of § 2255 because the new rule was not one of constitutional law.1 See

generally Jones, 226 F.3d at 330-34. Thus, because the petitioner was

“incarcerated for conduct that is not criminal” in light of the Supreme Court’s

holding, § 2255 was inadequate for testing the legality of the petitioner’s

conviction. Id. at 334.

       Unlike in Jones, Crews never filed a direct appeal, but more importantly, and

fatal to his case, has pointed to no Supreme Court holding overruling and altering

the conduct criminalized in his statute of conviction and, therefore, altering what

the government must prove to secure a conviction under that statute, 21 U.S.C.

§ 846. The legality of his conviction, therefore, is not in question and Crews

cannot show, under Jones, that § 2255 is ineffective or inadequate to test the

legality of his conviction.

       In Fiore, a state prisoner filed a habeas petition arguing that a Pennsylvania

Supreme Court decision clarified the law in existence at the time of his conviction

and, under the clarified law, the state had failed to prove a necessary element of the

crime for which he was convicted. Fiore, 528 U.S. at 24-25, 120 S.Ct at 470-71.

The United States Supreme Court did not decide the case, but certified a question



       1
        The Supreme Court decision at issue was Bailey v. United States, 516 U.S. 137, 144,
116 S.Ct. 501, 506, 133 L.Ed.2d 472 (1995), which held that § 924(c)(1)’s “use” prong requires
the government to show active employment of the firearm, not mere possession.

                                               9
to the Pennsylvania Supreme Court to determine whether that Court’s opinion at

issue articulated a new rule of law or merely clarified the existing law at the time

of the petitioner’s conviction. Id. at 29, 120 S.Ct. at 473. The Pennsylvania

Supreme Court responded, indicating that its opinion had merely clarified existing

law and, therefore, the United States Supreme Court held that the petitioner’s

conviction was invalid because a necessary element of the crime had not been

proven. Fiore v. White, 531 U.S. 225, 228-29, 121 S.Ct. 712, 714, 148 L.Ed.2d

629 (2001).

      Here, Crews has failed to prove that any element of his crime of conviction

was not proven by the government, nor has he demonstrated that any Court has

clarified the existing law regarding the necessary elements for proving drug

conspiracy charges under 21 U.S.C. § 846 in such a way as to render his conviction

invalid under federal law. Therefore, Fiore is inapposite.

      Finally, Crews argues that his failure to raise a direct appeal to his guilty

plea, conviction, and sentence should be excused because he was “actually

innocent” and, therefore, he should be permitted to pursue habeas relief under

Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998).

In Bousley, the Supreme Court held that, despite the fact that the petitioner had

procedurally defaulted on his claim that his guilty plea was not knowing and



                                          10
voluntary in light of the Supreme Court’s pronouncement in Bailey (see note 1

supra), he could pursue habeas relief only if he proved that “the constitutional error

in his plea colloquy has probably resulted in the conviction of one who is actually

innocent.” Bousley, 523 U.S. at 623, 118 S.Ct. at 1611. Thus, the petitioner

needed to demonstrate “no more than that he did not ‘use’ a firearm as that term is

defined in Bailey.” Id. at 624, 118 S.Ct. at 1612.

      Like Jones and Fiore, Bousley is inapposite. First, the question in Bousley

was limited to whether courts should permit post-Bailey collateral attacks, a

challenge Crews is not making. Id. at 618, 118 S.Ct. at 1608-09. Second,

assuming arguendo that Bousley had some applicability here, Crews’s

misconception is that an essential element of the crime for which he was convicted

has been in some way altered by a subsequent court decision, as in all three cases

he mentions. Unlike in Bousley, Crews has not pointed to an element of the crime

of conspiracy under 21 U.S.C. § 846 that has been so altered that the government

failed to properly prove the charge, making Crews actually and factually innocent

of the crime with which he was charged. Lastly, because the amendment Crews

alleges affected his sentence was already operative at the time of his sentencing, he

cannot show cause for why no argument was ever made to the district court or an

appellate court on that issue. See Bousley, 523 U.S. at 622, 118 S.Ct. at 1611.



                                          11
      Therefore, we conclude that Crews’s habeas petition was correctly dismissed

by the district court for being an impermissible attempt to circumvent the

requirement for filing a second or successive motion pursuant to § 2255.

      AFFIRMED.




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