                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                        FILED
                         ________________________            U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                                                    July 05, 2006
                                No. 05-14501                    THOMAS K. KAHN
                            Non-Argument Calendar                   CLERK
                          ________________________

                   D. C. Docket No. 05-00301-CV-OC-10GRJ

JAIME LUIS COLLAZO,



                                                               Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                              Respondent-Appellee.


                          ________________________

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

                                  (July 5, 2006)

Before TJOFLAT, ANDERSON and HULL, Circuit Judges.

PER CURIAM:

     Jamie Luis Collazo, a pro se federal prisoner, appeals the district court’s
dismissal of his petition for writ of habeas corpus filed pursuant to 28 U.S.C.

§ 2241. After review, we affirm.

      In his § 2241 petition, Collazo claimed that his constitutional rights were

violated because his sentence was enhanced based on facts that were neither

charged in the indictment nor proven to a jury beyond a reasonable doubt, in

violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000),

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). Collazo also alleged that he received

ineffective assistance of counsel.

      The district court noted that in his § 2241 petition Collazo averred that he

was convicted and sentenced in the Eastern District of Pennsylvania (“EDPA”),

and that Collazo did not challenge the execution of his sentence. Thus, the district

court concluded that Collazo should have filed his claims in a 28 U.S.C. § 2255

motion in the EDPA. The district court also pointed out that Collazo failed to state

whether he applied for relief under § 2255 in the EDPA or whether he was entitled

to relief under the “savings clause” of § 2255. Thus, the district court dismissed

Collazo’s § 2241 petition without prejudice to re-file his claims in the appropriate

court. Collazo moved for reconsideration of the dismissal, which the district court

denied. Collazo timely appealed.



                                          2
      “We review de novo the district court’s denial of habeas relief under

§ 2241.” Skinner v. Wiley, 355 F.3d 1293, 1294 (11th Cir. 2004). 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).

However, a provision of § 2255 permits a federal prisoner to file a habeas petition

pursuant to 28 U.S.C. § 2241 where § 2255 relief would be “inadequate or

ineffective.” Id.; see also 28 U.S.C. §§ 2241(a), 2255. That provision, known as

the “savings clause,” 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.

      The savings clause only applies when (1) the petitioner’s claim is based on a

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

established that the prisoner 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 v.




                                           3
Scott, 177 F.3d 1236, 1244 (11th Cir. 1999).1 In order for a petitioner to avail

himself of the § 2241 remedy under Wofford, all three criteria must be satisfied. A

petitioner may not argue the merits of his claim until he has “open[ed] the portal”

to a § 2241 proceeding by demonstrating that § 2255’s savings clause applies to his

claim. Id. at 1244 n.3.2

       As to the first prong, the constitutional rule announced in Blakely and

Booker “falls squarely under the category of new rules of criminal procedure that

do not apply retroactively to § 2255 cases on collateral review.” Varela v. United

States, 400 F.3d 864, 868 (11th Cir.), cert. denied, 126 S. Ct. 312 (2005).

Apprendi also does not apply retroactively on collateral review. McCoy v. United

States, 266 F.3d 1245, 1258 (11th Cir. 2001). Collazo does not point to any other

Supreme Court decisions in support of his claims. Therefore, Collazo has failed to

satisfy the first prong of the Wofford test, and we need not address the remaining

prongs. Further, because Collazo failed to “open the portal” to § 2241, we do not




       1
        The unavailability of a § 2255 motion because of a time limitation or procedural bar
does not render § 2255 “inadequate or ineffective” within the meaning of the savings clause.
See Wofford, 177 F.3d at 1245.
       2
          Collazo correctly argues that the text of § 2241 does not require a showing that § 2255
relief is inadequate or ineffective. However, that requirement does appear in the text of § 2255,
which is the proper avenue for challenging a federal conviction and sentence as Collazo’s § 2241
petition seeks to do. Thus, Collazo must show that § 2255 is inadequate or ineffective in order
to proceed under § 2241.

                                                4
reach the merits of his claims.3

       Collazo additionally argues that applying the savings clause to him violates

the Suspension Clause,4 and, therefore, we should decline to apply the test in

Wofford. Under the Suspension Clause, the “writ as it existed in 1789” is a

constitutional floor, below which Congress cannot restrict the writ of habeas

corpus. See INS v. St. Cyr, 533 U.S. 289, 300-01, 121 S. Ct. 2271, 2279-80 (2001)

(“[A]t the absolute minimum, the Suspension Clause protects the writ as it existed

in 1789.” (quotation marks and citation omitted)). However, Congress can, and

has, altered the writ since 1789. See Felker v. Turpin, 518 U.S. 651, 663-64, 116

S. Ct. 2333, 2339-40 (1996) (discussing history of the writ); see also Medberry v.

Crosby, 351 F.3d 1049, 1057 (11th Cir. 2003) (noting that the savings clause

“avoided any serious question about whether . . . § 2255 caused an unconstitutional

suspension of the writ.”); Swain v. Pressley, 430 U.S. 372, 381, 97 S. Ct. 1224,

1230 (1977) (stating that District of Columbia legislation patterned after § 2255

did not violate the Suspension Clause because “the substitution of a collateral

remedy which is neither inadequate nor ineffective to test the legality of a person’s

detention does not constitute a suspension of the writ of habeas corpus”).

       3
        We also reject Collazo’s argument based on Clisby v. Jones, 960 F.2d 925 (11th Cir.
1992) (en banc), for this reason.
       4
       U.S. Const. art. I, § 9, cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”).

                                                 5
Moreover, the remedy created in § 2255 is “the exact equivalent of the pre-existing

habeas corpus remedy.” Swain, 430 U.S. at 381, 97 S. Ct. at 1230.

       We readily conclude that § 2255’s savings clause does not violate the

Suspension Clause, and we are bound by the test set forth in Wofford.5 See

Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir. 1997) (stating that the “law of

this circuit is ‘emphatic’ that only the Supreme Court or this court sitting en banc

can judicially overrule a prior panel decision.”). Accordingly, because Collazo

failed to show that relief under § 2255 was inadequate or ineffective under the test

in Wofford, the district court did not err by dismissing his § 2241 petition.

       AFFIRMED.




       5
        We have previously held that neither the one-year limitations period for filing an initial
habeas corpus petition nor AEDPA’s restrictions on successive petitions amounts to suspension
of the writ. See Wyzykowski v. Dep’t of Corr., 226 F.3d 1213, 1217 (11th Cir. 2000).

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