                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                       FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                         ________________________   ELEVENTH CIRCUIT
                                                                 OCT 15, 2010
                               No. 09-16447                       JOHN LEY
                           Non-Argument Calendar                    CLERK
                         ________________________

                  D. C. Docket No. 09-00362-CV-OC-10GRJ

CLEVELAND WINSTON KILGORE,



                                                             Petitioner-Appellant,

                                     versus

WARDEN, FCC COLEMAN - LOW,

                                                           Respondent-Appellee.


                         ________________________

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

                               (October 15, 2010)

Before BLACK, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

     Pro se appellant-petitioner Cleveland Winston Kilgore, a federal prisoner,
appeals the court’s dismissal of his 28 U.S.C. § 2241 habeas petition.

       Kilgore was convicted of bank fraud and aggravated identity theft and

sentenced to 149 months’ imprisonment in federal district court in Maryland. The

Fourth Circuit Court of Appeals affirmed his conviction and sentence. Although

Kilgore never filed a motion to vacate under 28 U.S.C. § 2255, he did file two

challenges to his conviction and sentence under 28 U.S.C. § 2241, alleging that his

conviction was null and void.

       After the district court in Maryland dismissed his motions, Kilgore filed

another § 2241 habeas petition in the district court in South Carolina, where he was

incarcerated. When Kilgore was transferred to a correctional institution in Florida,

his petition was reassigned to the district court in the Middle District of Florida,

where it was denied with prejudice. Kilgore now appeals the denial of his § 2241

petition.

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

we review de novo. 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 v. Holder, 326 F.3d 1363, 1365 (11th Cir. 2003).

A provision of § 2255 known as the savings clause, however, permits a federal

prisoner, under limited circumstances, to file a habeas petition pursuant to § 2241.



                                           2
See 28 U.S.C. §§ 2241(a), 2255(e).

       A § 2241 petition may only be entertained under § 2255’s savings clause if

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

or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). The

savings clause applies to a claim when: (1) that claim is based upon a retroactively

applicable Supreme Court decision; (2) the holding of that Supreme Court decision

establishes that 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).

       After a review of the record, we conclude that the district court properly

dismissed Kilgore’s petition because he failed to show that his claim was based on

a retroactively applicable Supreme Court decision. His inability to make this

showing denies him access to § 2255’s savings clause and relief under § 2241.

We, therefore, affirm the district court’s order dismissing Kilgore’s § 2241

petition.1

       AFFIRMED.




       1
         Because we affirm on this ground, we do not address the district court’s conclusion that
Kilgore’s petition was successive or an abuse of the writ.

                                                3
