                                                                 [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                                                    FEBRUARY 28, 2012
                                            No. 11-14020
                                        Non-Argument Calendar           JOHN LEY
                                                                         CLERK
                                      ________________________

                            D.C. Docket No. 2:11-cv-00059-LGW-JEG



CHARLES DANIEL MAYE,

llllllllllllllllllllllllllllllllllllllll                            Petitioner-Appellant,


                                                 versus


WARDEN,

llllllllllllllllllllllllllllllllllllllll                           Respondent-Appellee.

                                     ________________________

                           Appeal from the United States District Court
                              for the Southern District of Georgia
                                 ________________________

                                           (February 28, 2012)

Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:

      In 2006, a jury found Petitioner guilty of conspiring, in violation of 18

U.S.C. § 371, to access a computer without authorization, in violation of 18 U.S.C.

§ 1030; accessing a computer without authorization in violation of § 1030; and

making false statements, in violation of 18 U.S.C. § 1001, and the district court

sentenced him to prison for a total of 97 months. Petitioner appealed his

convictions and sentences, but withdrew the appeal. On three occasions thereafter

he attempted, but failed, to gain relief from his convictions under 28 U.S.C. §

2255. After that, he attempted to gain such relief via a petition for a writ of

habeas corpus filed pursuant to 28 U.S.C. § 2241. In his petition, he claimed that

he is innocent of the crimes of which he was convicted—because of this court’s

decisions in United States v. Salum, 257 F. App’x 225 (11th Cir. 2007), and United

States v. Rodriguez, 628 F,3d 1258 (11th Cir. 2010)—and that he was entitled to

use § 2255's “savings clause” to proceed under § 2241.

      The district court referred the petition to a magistrate judge for a report and

recommendation. The magistrate judge recommended that the district court deny

the petition on the ground that Petitioner had not demonstrated eligibility for

invoking the savings clause; specifically, he had not cited a retroactively

applicable Supreme Court decision supporting his claim. Record, Vol. 1, Tab 9 at

                                          2
3. Petitioner objected to the magistrate’s recommendation on the ground that our

decision in Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999), authorized his

invocation of the savings clause. The district court overruled his objection and,

adopting the magistrate judge’s recommendation, denied relief. Record, Vol. 2,

Tab 14 at 2. Petitioner moved the court to reconsider, and the court denied his

motion. Id. Tab 19 at 2. Proceeding pro se, Petitioner now appeals the district

court’s ruling.

      Ordinarily, a federal prisoner must bring any collateral attack on his

conviction or sentence under 28 U.S.C § 2255. Sawyer v. Holder, 326 F.3d 1363,

1365 (11th Cir. 2003). However, under limited circumstances set forth in

§ 2255(e)’s savings clause, a federal prisoner may instead file a habeas petition

under § 2241. See 28 U.S.C. §§ 2241(a), 2255(e). This savings clause provides

that relief under § 2241 is only available if the prisoner affirmatively shows 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).

      Where, as here, a prisoner has previously filed an unsuccessful § 2255

motion to vacate his conviction, he generally may not file a second or successive

motion unless and until we grant him authorization. 28 U.S.C. § 2255(h); United

                                          3
States v. Diaz-Clark, 292 F.3d 1310, 1316 (11th Cir. 2002). This restriction,

standing alone, cannot render § 2255’s remedy inadequate or ineffective under the

savings clause in § 2255(e). Gilbert v. United States, 640 F.3d 1293, 1308 (11th

Cir. 2011) (en banc), cert. denied, (U.S. Jan. 9, 2012) (No. 11-6053).

      Rather, a prisoner meets this burden only where he shows that: (1) his

current claim is based on a retroactively applicable Supreme Court decision;

(2) the holding of that decision established that the prisoner was convicted of a

nonexistent offense; and (3) circuit law squarely foreclosed such a claim at the

time it otherwise should have been raised at the prisoner’s trial, appeal, or first

§ 2255 motion. Wofford, 177 F.3d at 1244; but see Gilbert, 640 F.3d at 1319

(clarifying that the Wofford test was dicta). A prisoner must satisfy all three

prongs of this test before we will consider the merits of his claim. Wofford, 177

F.3d at 1244 n.3.

      Here, Petitioner failed to establish that the savings clause applies, in that he

did not identify a relevant retroactively Supreme Court decision or show that this

circuit’s law squarely foreclosed his claim. Furthermore, he cannot use

§ 2255(e)’s savings clause merely to avoid the successive motion ban of

§ 2255(h).

      The district court’s decision is, accordingly,

                                           4
AFFIRMED.




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