                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 05-15230                FEBRUARY 22, 2006
                         Non-Argument Calendar            THOMAS K. KAHN
                                                              CLERK
                       ________________________

                 D. C. Docket No. 05-00141-CV-4-MP-AK

SCHEAREAN JEAN MEANS,


                                                   Petitioner-Appellant,

                                  versus

JOSE VASQUEZ,

                                                   Respondent-Appellee.

                       ________________________

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

                            (February 22, 2006)


Before MARCUS, WILSON and FAY, Circuit Judges.

PER CURIAM:
       Schearean Jean Means, a federal prisoner proceeding pro se, appeals the

district court’s sua sponte order dismissing with prejudice her pro se petition for a

writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241. Means filed her § 2241

petition after April 24, 1996; therefore, the Antiterrorism and Effective Death

Penalty Act of 1996 (“the AEDPA”), Pub.L.No. 104-132, 110 Stat. 1214 (1996), is

applicable. Means argues on appeal that the district court erred in dismissing her

§ 2241 petition, based on its conclusion that she failed to make the requisite

showing to invoke the “savings clause” of 28 U.S.C. § 2255. For the reasons set

for more fully below, we affirm.

       Means is serving a life sentence for conspiracy to possess with intent to

distribute an unspecified amount of “cocaine, cocaine base, marijuana, and

prescription drugs,” and possession with intent to distribute these drugs. After we

affirmed her convictions on direct appeal in 1998, Means filed a § 2255 motion. In

2002, the district court denied this § 2255 motion, concluding that Means’s claims

were procedurally defaulted.1




       1
          Although not discussed in Means’s § 2241 petition, the magistrate judge included in his
report and recommendation that, prior to filing the instant petition, Means also filed (1) a second
§ 2255 motion, which the district court dismissed as an unauthorized successive petition; and
(2) a prior § 2241 petition, which the court dismissed because Means should have raised her
claims either on direct appeal or in a § 2255 proceeding.

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       In April 2005, Means filed the instant § 2241 petition, arguing that her life

sentence for her drug convictions was illegal and violated her Sixth Amendment

right to a jury trial, pursuant to the Supreme Court’s decisions in Edwards v.

United States, 523 U.S. 511, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998),2 and United

States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).3 Means

specifically contended that her sentence exceeded the maximum sentences

authorized by statute and the United States Federal Guidelines (“federal

guidelines”) because (1) the offenses involved multiple types of drugs, (2) no

specific quantity of drugs was alleged in the indictment, and (3) the jury returned a

general verdict of guilty on the conspiracy count. Means also argued that her

enhanced sentence, pursuant to 21 U.S.C. § 851, was illegal because the sentencing




       2
           In Edwards, the petitioners, who were convicted by a general verdict of conspiracy to
possess cocaine and cocaine base, argued that the district court erred in considering the quantity
of both drugs in imposing sentence. See Edwards, 523 U.S. at 513, 118 S.Ct. at 1477. Although
the Supreme Court in Edwards upheld this sentence, it noted that the petitioners’ statutory and
constitutional claims would have made a difference if the sentences had exceeded the maximum
that the statutes permitted for a cocaine-only conspiracy because a maximum sentence set by
statute trumps a higher sentence set forth in the federal guidelines. See id. at 515, 118 S.Ct. at
1477.
       3
           In Booker, the Supreme Court determined that the mandatory nature of the federal
guidelines rendered them incompatible with the Sixth Amendment’s guarantee to the right to a
jury trial. See United States v. Booker, 543 U.S. 220, ___, 125 S.Ct. 738, 749-51, 160 L.Ed.2d
621 (2005). Furthermore, the Booker Court reaffirmed that “[a]ny fact (other than a prior
conviction) which is necessary to support a sentence exceeding the maximum authorized by the
facts established by a plea of guilty or a jury verdict must be admitted by the defendant or
proved to a jury beyond a reasonable doubt.” See id. at ___, 125 S.Ct. at 756.

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court erred in concluding that four prior state convictions on which the court relied

in applying this enhancement were “felony drug offenses.”

      The magistrate, without waiting for the government to respond,

recommended that the district court dismiss with prejudice Means’s § 2241

petition. The magistrate explained that, except for Means’s Booker claims, her

§ 2241 claims were the same claims that she previously had presented, or should

have presented, in her prior collateral proceedings. The magistrate also determined

that, because Means had not identified a retroactively applicable Supreme Court

decision that “open[ed] the portal to a § 2241 proceeding,” § 2255's “savings

clause” was not triggered, and Means’s § 2241 petition could not proceed. After

Means’s filed no objections to this report and recommendation, the district court

adopted it and sua sponte dismissed with prejudice Means’s § 2241 petition.

      Means again argues on appeal that her life sentence is illegal because,

pursuant to the Supreme Court’s decision in Edwards, following the jury’s general

verdicts for conspiracy and possession offenses involving multiple types of drugs,

her life sentence exceeded her maximum statutory sentences. Means also contends

that, pursuant to the Supreme Court’s decision in Booker, the sentencing court

exceeded its jurisdiction by sentencing her based on offenses that neither were

charged in her indictment, nor proved beyond a reasonable doubt to a jury. Means



                                          4
argues that the court’s sua sponte dismissal of her § 2241 petition was erroneous

because (1) these decisions are retroactively applicable on collateral review, and

(2) she has no other adequate remedy at law to obtain relief from her illegal

sentence. Moreover, Means again argues that the sentencing court, in imposing an

enhanced sentence under § 851, erred in relying on prior state convictions that

were not qualifying controlled-substance offenses.

      As a preliminary matter, Means–a federal prisoner proceeding under

§ 2241–may proceed on appeal despite the lack of a certificate of appealability

(“COA”). See Sawyer v. Holder, 326 F.3d 1363, 1364 n.3 (11th Cir. 2003)

(holding that the petitioner who was attempting to invoke the “savings clause” in

§ 2255 through a § 2241 petition did not need a COA to proceed on appeal). Also,

as neither party appears to contest, if Means’s pleading was properly construed as a

§ 2255 motion, it was successive and she needed our permission to file it. See

Darby v. Hawk-Sawyer, 405 F.3d 942, 945 (11th Cir. 2005) (explaining that, when

a prisoner previously has filed a § 2255 motion that is denied with prejudice, she

must apply for, and receive, our permission before filing a successive § 2255

motion). The only issue for our review, therefore, is whether the district court

erred in concluding that Means failed to make the requisite showing to invoke the

“savings clause” in § 2255.



                                          5
      The availability of habeas relief under § 2241 presents a question of law that

we review de novo. Id. at 944. Although § 2255 is the primary method of

collateral attack for federal prisoners, § 2241 provides a limited, additional basis

for habeas actions brought by federal prisoners. Section 2255 provides that:

      [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
      his detention.

28 U.S.C. § 2255. Thus, under this “savings clause,” a court may entertain a

§ 2241 petition attacking custody resulting from a federally imposed sentence only

if the petitioner establishes that § 2255's remedy is inadequate or ineffective.

McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979) (holding that a prior

unsuccessful § 2255 motion, alone, is insufficient to establish ineffectiveness).

      The burden of producing evidence affirmatively showing the inadequacy or

ineffectiveness of § 2255 relief rests with the petitioner. Id. Section 2255

remedies only should be considered inadequate if:

      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.



                                           6
Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999). We have explained that,

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 . . ..” Id. at 1244 n.3. However, as we recently reiterated,

the AEDPA’s 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.

      In the instant case, Means failed to cite to a Supreme Court decision in

support of her claim that her prior state convictions did not constitute controlled-

substance offenses for purposes of § 851 enhancement. On the other hand, Means

generally asserted in her § 2241 petition that her remaining claims were based

upon the Supreme Court’s retroactively applicable decisions in Edwards and

Booker, and that she was convicted of a “nonexistent offense.” The Supreme

Court, however, decided Edwards in 1998, before Means filed her first § 2255

motion. Moreover, we have stated that the hypothetical position discussed in

Edwards, that is, that the district court would have erred in considering the quantity

of both drugs in imposing a sentence after a general verdict for a conspiracy to

possess both cocaine and cocaine base, was, in fact, the law of this Circuit. See



                                           7
Black v. United States, 373 F.3d 1140, 1146 (11th Cir. 2004) (citing United States

v. Allen, 302 F.3d 1260, 1274-75 (11th Cir. 2002)), cert. denied, 543 U.S. 1080

(2005).

      Additionally, we have determined that Booker is not retroactively applicable

to cases on collateral review. See Varela v. United States, 400 F.3d 864, 868 (11th

Cir.) (explaining that “Booker’s constitutional rule falls squarely under the

category of new rules of criminal procedure that do not apply retroactively to

§ 2255 cases on collateral review”), cert. denied, 126 S.Ct. 312 (2005); see also In

re Anderson, 396 F.3d 1336, 1339-40 (11th Cir. 2005) (holding that the Supreme

Court has not made Booker retroactively applicable on collateral review for

purposes of authorizing a second or successive § 2255 motion). Thus, even if

Means could establish that she was “actually innocent” of the offenses of

conviction, she failed to satisfy the requirements of the “savings clause” and “to

open the portal to a § 2241 proceeding.” See Wofford, 177 F.3d at 1244 n.3.

      By labeling her successive collateral attack on her convictions and sentences

as a § 2241 habeas petition, Means was attempting to avoid the application of the

successive petition rule for § 2255 motions. The “savings clause,” however, “does

not exist to free a prisoner of the effects of his failure to raise an available claim

earlier.” See id. at 1245. Thus, allowing the action to remain a habeas petition



                                            8
under § 2241, when Means failed to satisfy the requirements of the “saving

clause,” would have rendered the AEDPA and its successive-petition rule in

§ 2255 meaningless. See id. at 1244-45.

      Accordingly, we conclude that the district court did not err in sua sponte

dismissing with prejudice Means’s § 2241 petition. We, therefore, affirm.

      AFFIRMED.




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