                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT                     FILED
                     ________________________          U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                              June 1, 2007
                            No. 06-15993                  THOMAS K. KAHN
                        Non-Argument Calendar                 CLERK
                      ________________________

               D. C. Docket No. 03-00446-CV-OC-10-GRJ

KENNETH L. RIVERS,



                                                         Petitioner-Appellant,

                                 versus


DONALD A. MCKELVY,
Warden,

                                                       Respondent-Appellee.


                      ________________________

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

                             (June 1, 2007)

Before ANDERSON, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:
       Kenneth Rivers, a federal prisoner proceeding pro se, appeals the district

court’s dismissal of his petition for writ of habeas corpus filed pursuant to 28

U.S.C. § 2241.1 After a thorough review of the record, we affirm.

       In December 2003, Rivers filed a pro se § 2241 petition challenging the

imposition of a 30-year mandatory-minimum sentence for using and carrying

firearms in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1)(B)(ii).

According to the record, Rivers was indicted on four counts, including using and

carrying firearms in relation to a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c). Following a trial, Rivers was convicted of all four counts. Although the

jury had not found that one of the firearms involved was a machine gun, the trial

court made this finding and sentenced Rivers to a mandatory 360 months for the

§ 924(c) count, to run consecutively to the sentences imposed on the remaining

counts.

       On direct appeal, this court reversed one count, and affirmed as to the other

counts, including the § 924(c) offense. United States v. Brantley, 68 F.3d 1283

(11th Cir. 1995). Thereafter, Rivers filed a motion to vacate pursuant to 28 U.S.C.




       1
          Because Rivers filed his petition after the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-32, 110 Stat. 1214 (1996), the
provisions of the act govern this appeal.

                                              2
§ 2255, which the district court denied.2 He also requested leave to file another

§ 2255 motion, raising the same claims as the instant petition, but this court denied

leave because the motion was a second and successive motion to vacate.

       Rivers then filed the instant § 2241 petition, arguing that his sentence is

fundamentally defective because the district court lacked subject-matter

jurisdiction to impose the mandatory-minimum 30-year sentence for possession of

a machine gun, as the jury did not find that the firearm involved was a machine

gun. Rivers asserted that he could meet the three-pronged test set out in Wofford

v. Scott, 177 F.3d 1236 (11th Cir. 1999), to show that § 2255 was inadequate and

ineffective. He asserted that two Supreme Court cases are relevant and

retroactively applicable: Edwards v. United States, 523 U.S. 511, 118 S.Ct. 1475,

140 L.Ed.2d 703 (1998), and Castillo v. United States, 530 U.S. 120, 120 S.Ct.

2090, 147 L.Ed.2d 94 (2000).3 Rivers added that he is actually innocent of the

conduct used to enhance his sentence.

       The government responded that Rivers did not satisfy any of Wofford’s



       2
         Rivers filed a notice of appeal from the denial of his § 2255 motion, but the appeal was
dismissed for want of prosecution.
       3
          In Edwards, the Supreme Court held that the sentencing guidelines instruct a judge to
determine the amount and type of controlled substance involved. 523 U.S. at 513. In Castillo,
the Supreme Court held that the firearm-type related words in the version of § 924(c)(1) at issue
created a separate, aggravated offense and thus, the machine gun element must be identified in
the indictment and proved beyond a reasonable doubt to the jury. 530 U.S. at 122-24, 131.

                                                3
three prongs because neither Edwards nor Castillo applied retroactively, Rivers

was not convicted of a nonexistent offense, and Rivers’ arguments were not

foreclosed by case law because Edwards was decided before the denial of his first

§ 2255 motion.4 Additionally, the government argued that Rivers had not proved

his actual innocence.

       The district court dismissed the petition, discussing Wofford’s three-pronged

test for applying § 2255’s savings clause and concluding that Rivers did not satisfy

any prong. The court also found that even if Rivers had met Wofford’s

requirements, he had not established that he was actually innocent. Rivers now

appeals.

       Rivers argues that (1) he must only establish that his claim is based on a

retroactively applicable Supreme Court decision overturning circuit precedent in

order to receive the benefit of § 2255’s savings clause; and (2) Castillo should be

considered a retroactively applicable case. According to Rivers, he is not required

to show that he was convicted of a nonexistent offense. Rivers also asserts that he

meets the third prong of the Wofford test because circuit law foreclosed his raising

his claims when he filed his first § 2255 petition.



       4
         River’s filed an objection to the magistrate judge’s report and recommendation as to
his §2255 motion after the decision in Edwards was announced, but he did not raise any
argument concerning Edwards.

                                               4
       The availability of habeas relief under § 2241 presents a question of law that

we review de novo.5 Cook v. Wiley, 208 F.3d 1314, 1317 (11th Cir. 2000).

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

be brought under § 2255. Sawyer, 326 F.3d at 1365. The “savings clause” in

§ 2255, however, permits a prisoner to file a § 2241 petition if an otherwise

available remedy under § 2255 is inadequate or ineffective to test the legality of his

detention. 28 U.S.C. § 2255. This court in Wofford established a three-prong test

to determine the applicability of the savings clause to permit a federal prisoner to

file a § 2241 petition attacking his conviction or sentence. The petitioner must

show (1) that his claim is based on a retroactively applicable U.S. Supreme Court

decision; (2) the holding of that decision establishes that the petitioner was

convicted of a non-existent offense; and (3) circuit law squarely foreclosed such a

claim at the time it otherwise should have been raised at the petitioner’s trial,

appeal, or first § 2255 motion. Wofford, 177 F.3d at 1244; see also Sawyer, 326

F.3d at 1365. Once the petitioner has “open[ed] the portal” to a § 2241 proceeding

by demonstrating that the savings clause applies to his claim, the question becomes

whether or not he can establish actual innocence. Wofford 177 F.3d at 1244 n.3.

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


       5
         Rivers is not required to obtain a certificate of appealability (“COA”) to appeal the
dismissal of a § 2241 petition. Sawyer v. Holder, 326 F.3d 1363, 1364 n.3 (11th Cir. 2003).

                                                 5
apply for and receive permission from the circuit court prior to filing a successive

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

1293 (11th Cir. 1996). A petitioner who has filed and been denied a previous

§ 2255 motion may not circumvent the successive-petition rule simply by filing

another petition under § 2241. Wofford, 177 F.3d at 1245.

       Here, Rivers cannot show that § 2255 was inadequate or ineffective. Rivers

relies on two cases to enable him to file under § 2241 through § 2255’s savings

clause: Edwards and Castillo. As a starting point, the decision in Edwards would

not affect Rivers’s conviction or sentence, Edwards did not announce a new rule of

law, and Edwards was available to him before the district court denied his first

§ 2255 motion to vacate. Thus, to succeed, Rivers must rely on Castillo as the

basis for his claim.

       This court has not addressed whether Castillo is retroactively applicable on

collateral review, and other circuits are divided on the issue.6 See United States v.

Gonzales, 327 F.3d 416 (5th Cir. 2003) (holding that Castillo is not retroactively

applicable); but see United States v. Wiseman, 297 F.3d 975, 981-982 (10th Cir.

2002) (concluding Castillo is retroactively applicable). We need not resolve this

issue, however, because Rivers cannot meet Wofford’s second prong and show that


       6
          We note that, in denying Rivers leave to file a second and successive motion to vacate,
this court indicated that Castillo was not retroactively applicable.

                                                6
he was convicted of a “nonexistent offense.” Wofford, 177 F.3d at 1244. In

Castillo, the Supreme Court did not de-criminalize the offense conduct for which

Rivers has been convicted; it determined that the offense conduct was a separate

aggravated offense. 530 U.S. at 131. Therefore, even if the jury did not find that

the firearm involved was a machine gun for purposes of the enhanced sentence,

Rivers was convicted of an existent offense and cannot satisfy the second Wofford

prong. Accordingly, he is not entitled to relief under § 2241.

      Moreover, Rivers filed a previous § 2255 motion, which was denied, and he

cannot use § 2241 as a means to circumvent the limits on successive applications

or to show that § 2255 is inadequate or ineffective.

      Finally, to the extent Rivers argues that he was actually innocent of the

offense, his claims amount to legal insufficiency rather than factual innocence.

The actual innocence exception is “exceedingly narrow in scope” and requires

proof of factual innocence, not just legal insufficiency. Johnson v. Alabama, 256

F.3d 1156, 1171 (11th Cir. 2001); see also Sawyer, 326 F.3d at 1367.

      For the foregoing reasons, we AFFIRM the district court.




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