                                                               [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                    FILED
                                                           U.S. COURT OF APPEALS
                                No. 04-14689                  ELEVENTH CIRCUIT
                                                                 August 23, 2005
                            Non-Argument Calendar
                                                              THOMAS K. KAHN
                          ________________________                 CLERK

                      D. C. Docket No. 04-21578-CV-CMA

HANDY BAILEY,

                                                           Petitioner-Appellant,

                                       versus

WARDEN, FCI MIAMI,
Loren Grayer,

                                                           Respondent-Appellee.

                          ________________________

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

                                (August 23, 2005)

Before BLACK, PRYOR and COX, Circuit Judges.

PER CURIAM:

      Handy Bailey, a federal prisoner proceeding pro se, appeals the district court’s

dismissal of his 28 U.S.C. § 2241 petition for a writ of habeas corpus. We affirm.
      Bailey was convicted on two counts of possession with intent to distribute

cocaine base in violation of 21 U.S.C. § 841(a)(1). We affirmed his conviction and

sentence. See United States v. Bailey, No. 98-2561 (11th Cir. June 21, 1999). Bailey

filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. §

2255, which the district court denied. Bailey then filed a motion to dismiss the

indictment pursuant to Federal Rule of Criminal Procedure 12(b), which the district

court denied. On appeal, we deemed Bailey’s 12(b) motion to be a habeas petition

within the meaning of 28 U.S.C. § 2244(b)(3)(A). We vacated the district court’s

order and remanded with instructions to dismiss for lack of jurisdiction. See United

States v. Bailey, No. 03-11517 (11th Cir. July 8, 2004).

      Bailey then filed this petition for writ of habeas corpus pursuant 28 U.S.C. §

2241. In his § 2241 petition, Bailey presents claims of actual or factual innocence

which he contends were not argued in his § 2255 petition because “the law was not

developed at the time the section 2255 motion was denied, and the evidence

establishing his innocence was not obtained until after the section 2255 motion was

denied.” (R.1-1 at 3.) The magistrate judge recommended dismissing the petition.

Bailey objected to the magistrate judge’s report, contending that his claims of

innocence must be addressed before the petition could be denied on procedural




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grounds. (R.1-7 at 1-2.) The district court, however, dismissed Bailey’s petition for

the reasons stated in the magistrate judge’s recommendation. Bailey appeals.1

       We conclude that the district court properly dismissed Bailey’s § 2241 petition.

Collateral attacks on the validity of a federal conviction or sentence typically are

brought under 28 U.S.C. § 2255. See Sawyer v. Holder, 326 F.3d 1363, 1365 (11th

Cir.), cert. denied, 540 U.S. 900 (2003). When a prisoner has previously filed a §

2255 motion, he must apply for and receive this court’s permission before filing a

successive § 2255 motion. Bailey did not receive our permission to file a successive

§ 2255 motion.

       Bailey is precluded from seeking relief under § 2241 because the § 2255

“savings clause” does not apply to these circumstances. The savings clause in § 2255

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. A petitioner may not argue actual innocence until he has “open[ed] the portal”

to a § 2241 proceeding by demonstrating that the savings clause applies to his claim.

Wofford v. Scott, 177 F.3d 1236, 1244 n.3 (11th Cir. 1999). But in order to invoke



       1
        The district court denied Bailey’s motion for a certificate of appealability. (R.1-10 at 13.)
A federal prisoner who proceeds under 28 U.S.C. § 2241, however, does not need a certificate of
appealability to appeal. See Saywer v. Holder, 326 F.3d 1363, 1364 n.3 (11th Cir.), cert denied, 540
U.S. 900 (2003).

                                                 3
the savings clause, Bailey must show that: (1) his claim is based on a retroactively

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

Bailey was convicted of 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.

Because Bailey has not shown that he was convicted of or sentenced for a crime that

has been rendered “nonexistent,” we find that he is unable to satisfy the second prong

of the Wofford test. Bailey cites no case that would render the crime of cocaine

possession nonexistent.

      Bailey also contends that he was factually innocent of his sentence as a career

offender because his sentence was enhanced by his prior convictions, which were not

proven to a jury beyond a reasonable doubt, as he claims is required by Blakely v.

Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004). We have already held, however,

that Blakely is irrelevant to sentencing enhancements based on prior convictions. See

United States v. Marseille, 377 F.3d 1249, 1257 n.14 (11th Cir. 2004). Thus there

was no defect in sentencing that authorized the application of the savings clause in

§ 2255.

      Because Bailey cannot satisfy the second prong of the Wofford test with regard

to any of his claims, including his sentencing claim, we need not address the

                                          4
remaining prongs of the Wofford test. And, because all of his arguments for relief fail

the Wofford test, we need not reach the issue of actual innocence. The district court’s

dismissal of Bailey’s § 2241 petition for writ of habeas corpus is, therefore,

      AFFIRMED.




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