                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                      FILED
                        ________________________          U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                October 31, 2006
                               No. 06-11402                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                D. C. Docket No. 06-00028-CV-ORL-28-KRS

QUENTIN RUDOLPH DIXON,



                                                            Petitioner-Appellant,

                                    versus

UNITED STATES OF AMERICA,

                                                          Respondent-Appellee.


                         ________________________

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

                             (October 31, 2006)

Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

     Quintin Rudolph Dixon, a federal prisoner proceeding pro se, appeals the
district court’s denial of his petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2241, for failure to demonstrate entitlement to proceed under the savings

clause of 28 U.S.C. § 2255. For the reasons that follow, we affirm the district

court.

                                 I. BACKGROUND

         In September 2001, Dixon and four others were indicted by a federal grand

jury for manufacturing, possessing, and conspiring to possess counterfeit federal

notes, in violation of 18 U.S.C. §§ 371, 471, and 472. Dixon, without the benefit

of a plea agreement, pleaded guilty to all counts against him, and was sentenced to

88 months in prison. Dixon’s four co-defendants, by contrast, entered into plea

agreements, under which the conspiracy count was dismissed, and were sentenced

to 24 months of probation. Dixon, who did not appeal his convictions, filed a

motion to vacate his sentence pursuant to 28 U.S.C. § 2255. After the district court

denied his initial § 2255 motion, Dixon requested, and was denied, permission to

file a second and successive § 2255 motion. Dixon then filed a § 2241 petition for

a writ of habeas corpus, claiming ineffective assistance of counsel and erroneous

calculation of his sentence. Dixon also claimed that because the Government had

dismissed the conspiracy charges against his co-defendants, he was “actually

innocent” of conspiracy. The district court denied his § 2241 petition, holding that



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Dixon had failed to satisfy the criteria of § 2255’s savings clause, and thus, as a

federal prisoner, could not proceed under § 2241. On appeal, Dixon argues that:

he properly filed his petition pursuant to § 2241, the district court should have

addressed the merits of his petition, he is actually innocent of conspiracy, and there

was a fundamental defect in his sentencing.

                                 II. DISCUSSION

      The availability of habeas relief under § 2241 presents a question of law that

we review de novo. Darby v. Hawk-Sawyer, 405 F.3d 942, 944 (11th Cir. 2005).

Typically, collateral attacks on the validity of a federal conviction or sentence must

be brought under § 2255. Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir. 2003).

On rare occasions, however, it is possible for federal prisoners to attack their

convictions and sentences pursuant to § 2241 as opposed to § 2255. Id.; 28 U.S.C.

§§ 2241(a), 2255. Under what is termed the “savings clause” of § 2255,

      [a]n 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



                                           3
      his detention.

28 U.S.C. § 2255. Thus, a § 2241 petition attacking custody resulting from a

federally-imposed sentence may be entertained only if the petitioner establishes

that the § 2255 remedy is inadequate or ineffective. See id. The burden of coming

forward with evidence affirmatively showing the inadequacy or ineffectiveness of

the § 2255 remedy rests with the movant. McGhee v. Hanberry, 604 F.2d 9, 10

(5th Cir. 1979).

      When a prisoner has previously filed a § 2255 motion to vacate, he must

apply for and receive our authorization before filing a successive § 2255 motion.

28 U.S.C. §§ 2244(b)(3), 2255; In re Blackshire, 98 F.3d 1293, 1293 (11th Cir.

1996). We have made clear that the restrictions on successive § 2255 motions,

“standing alone, do not render that section ‘inadequate or ineffective’ within the

meaning of the savings clause.” Darby, 405 F.3d at 945. Therefore, a petitioner

who has filed a previous § 2255 motion, which has been denied, may not

circumvent the successive-motion rule simply by filing a petition under § 2241. Id.

(citing Wofford v. Scott, 177 F.3d 1236, 1245 (11th Cir. 1999)).

      We have articulated a three-prong test to determine whether § 2255 is

inadequate or ineffective to test the legality of a prisoner’s detention under

§ 2255’s savings clause. According to that test, the savings clause applies when:



                                           4
      (1) that 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, 177 F.3d at 1244. In order for a prisoner to avail himself of the § 2241

remedy under Wofford, all three criteria must be satisfied. See id. If the savings

clause of § 2255 applies “to open the portal to a § 2241 proceeding, the proper

inquiry in that § 2241 proceeding will be whether the petitioner can establish actual

innocence of the crime for which he has been convicted, as ‘actual innocence’ is

defined in Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d

828 (1998).” Id. at 1244 n.3.

      In the instant case, Dixon is precluded from seeking relief under § 2241

because the § 2255 savings clause does not apply. First, Dixon previously filed a

§ 2255 motion to vacate, and his motion was denied. Thus, it appears that Dixon

filed his § 2241 petition in an effort to circumvent the rules limiting the scope of

successive § 2255 motions. Second, Dixon cannot meet the initial prong of the

Wofford criteria because he has not shown that his claims are based on any



                                           5
retroactively applicable Supreme Court decision. Because he has not satisfied all

three Wofford criteria, Dixon’s petition does not fit within the savings clause of

§ 2255. Accordingly, Dixon has failed “to open the portal to a § 2241

proceeding,” and he cannot argue the merits of his claims of actual innocence,

improper sentencing, and ineffective assistance of counsel.

                                III. CONCLUSION

      For the reasons above, we AFFIRM the district court.




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