                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                 DEC 13, 2006
                                No. 06-12190                   THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                        D. C. Docket No. 05-00199-CV-2

ANGEL I. RAMIRO,



                                                              Petitioner-Appellant,

                                     versus

WARDEN JOSE M. VASQUEZ,

                                                             Respondent-Appellee.


                          ________________________

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

                              (December 13, 2006)

Before BIRCH, BLACK and MARCUS, Circuit Judges.

PER CURIAM:

     Angel I. Ramiro, a pro se federal prisoner, appeals the dismissal of his
petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. We

AFFIRM.

                                      I. BACKGROUND

      Ramiro was convicted in the Middle District of Florida in 1994 of

conspiring to distribute cocaine and attempting to possess marijuana with the intent

to distribute, both in violation of 21 U.S.C. § 846. The district judge sentenced

Ramiro to 236 months of imprisonment.1 Ramiro appealed, and we affirmed his

conviction and sentences. United States v. Ramiro, 65 F.3d 181 (11th Cir. 1995)

(table). Ramiro then filed a motion to vacate his sentence under 28 U.S.C. § 2255.

The government moved to dismiss his motion to vacate because it was both time-

barred and failed on the merits. The district judge dismissed Ramiro’s § 2255

motion with prejudice for the reasons stated in the government’s motion to dismiss.

      Subsequently, Ramiro filed the § 2241 petition at issue in this appeal. The

government moved to dismiss his petition and contended that the petition should

fail because Ramiro could not satisfy the “savings clause” of § 2255, R1-6 at 5-7,

and that Ramiro’s claims, relying upon 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), were not applicable retroactively to cases on collateral review, id. at 7.



      1
          Ramiro is incarcerated at the Federal Correctional Institution in Jesup, Georgia.

                                                  2
Ramiro filed a traverse to the government’s motion to dismiss and reiterated the

arguments made in his § 2241 petition. Ramiro also asserted that a number of

factors out of his control caused him to file his prior § 2255 late and, therefore, had

rendered § 2255 relief inadequate. Additionally, Ramiro contended that he was

innocent of the crime for which he was convicted and that his arguments did not

raise retroactivity concerns.

       A magistrate judge issued a Report and Recommendation (“R&R”) that

recommended dismissing the § 2241 petition because Ramiro could not satisfy the

savings clause of § 2255. The magistrate judge noted that, in Wofford v. Scott,

177 F.3d 1236, 1244 (11th Cir. 1999), our court held that, to satisfy the savings

clause of § 2255, a petitioner must present evidence that his claims are based upon

a retroactively applicable Supreme Court decision and that circuit law foreclosed

his claim from being brought at the time that it otherwise should have been raised.

R1-8 at 3-4. The magistrate judge concluded that Ramiro had not presented such

evidence. Therefore, the magistrate judge found that none of Ramiro’s claims

satisfied the savings clause of § 2255 and could not be filed properly in a § 2241

petition.

       Ramiro filed objections to the magistrate judge’s recommendation and

reiterated his previous arguments, including his contention that the Antiterrorism



                                           3
and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244, violates the

United States Constitution by suspending habeas corpus if it forecloses his petition.

Ramiro also claimed that the district judge could determine whether Booker and

Blakely applied retroactively.

      The district judge adopted the magistrate judge’s R&R and dismissed

Ramiro’s § 2241 petition. Ramiro filed a motion for reconsideration and stated his

prior arguments with the contention that the district judge erred by dismissing his

petition without addressing the arguments that he had made in his petition. Ramiro

then filed a second motion for reconsideration, which the district judge also denied.

Ramiro has appealed the dismissal of his pro se § 2241 petition.

                                 II. DISCUSSION

      On appeal, Ramiro raises a number of arguments challenging his conviction.

First, Ramiro argues that the district judge made Booker errors by sentencing him

based on conduct that was not in the indictment and found by a jury. Second,

Ramiro contends that his attorney failed to provide him with the transcripts he

needed to file a valid § 2255 motion. Third, Ramiro claims that he was “convicted

and sentenced for a nonexistent offense [because] there was no cocaine involved

on Ramiro's case.” Petitioner's Br. at 10. Fourth, Ramiro asserts that the savings

clause of § 2255 applies to him because he has not had an opportunity to be heard



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regarding his allegations that the district judge erred in his criminal trial. Finally,

Ramiro argues that he is actually innocent and, therefore, we should allow this

petition to avoid a miscarriage of justice.

      The government argues that Ramiro was ineligible to file a § 2241 petition

because he has not met the requirements for invoking the savings clause of § 2255.

Specifically, the government contends that Ramiro’s petition fails under Wofford

because he does not identify a retroactively applicable Supreme Court decision de-

criminalizing his conduct. Ramiro replies that his showing of actual innocence

satisfies the savings clause of § 2255 and “entitles him to pass through the

gateway portal.” Petitioner's Reply Br. at 1. Ramiro also argues that his case falls

outside of the case law for “'second or successive'” motions to vacate because he

has shown “'cause'” for his original procedural default in his § 2255 motion. Id. at

2. Finally, Ramiro contends that the Supreme Court’s holding in House v. Bell, __

U.S.__, 126 S.Ct. 2064 (2006), permits a defendant who shows actual innocence to

bring a § 2241 action.

      As a preliminary matter, Ramiro may proceed before our court despite the

lack of a certificate of appealability (“COA”). Under 28 U.S.C. § 2253(c)(1)(B), a

federal prisoner must obtain a COA to appeal only when proceeding under § 2255.

By negative implication, a federal prisoner who proceeds under § 2241 does not



                                              5
need a COA to appeal. 28 U.S.C. § 2253(c); Sawyer v. Holder, 326 F.3d 1363,

1364 n.3 (11th Cir. 2003).

      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).

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

must be brought under § 2255. Sawyer, 326 F.3d at 1365. Under limited

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

petition pursuant to § 2241. 28 U.S.C. §§ 2241(a), 2255. That provision, known

as the “savings clause,” provides that

             [a]n application for 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. Accordingly, a court may entertain a § 2241 petition attacking

custody resulting from a federally imposed sentence if the petitioner establishes

that the remedy provided for under § 2255 is inadequate or ineffective. 28 U.S.C.

§ 2255. “The burden of coming forward with evidence affirmatively showing the

inadequacy or ineffectiveness of the § 2255 remedy rests with the petitioner.”

McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979) (per curiam).


                                           6
      When a prisoner previously has filed a § 2255 motion to vacate, he must

apply for and receive permission from our court before filing a successive § 2255

motion. 28 U.S.C. §§ 2244(b)(3)(A), 2255. We have held that such restrictions on

successive § 2255 motions, standing alone, do not render that section “inadequate

or ineffective” within the meaning of the savings clause. Wofford, 177 F.3d at

1244-45 & n. 3. Consequently, a petitioner who has filed a previous § 2255

motion that has been denied may not circumvent the successive-motion rule of

AEDPA simply by filing a petition under § 2241. Id. We have established that the

savings clause applies only when (1) the petitioner’s “claim is based on 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.” Id. at 1244. For a prisoner to avail himself of the § 2241 remedy under

Wofford, all three criteria must be satisfied, which occurs only in the narrowest of

circumstances. Id.

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

portal” to a § 2241 proceeding by demonstrating that the savings clause applies to

his claim. Id. at 1244 n. 3. Only if a petitioner successfully “opens the portal” will



                                           7
we take the next step and determine if the petitioner can overcome a procedural

default by showing “'actual innocence.'” Id.

      Ramiro is precluded from seeking relief under § 2241 because the savings

clause of § 2255 does not apply. He cannot meet the initial prong of the test in

Wofford because he has not demonstrated that his claim is based on a retroactively

applicable Supreme Court decision. Ramiro’s arguments seem to rely on Apprendi

v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), Blakely, and Booker, but we

have held that these Supreme Court decisions do not apply retroactively to cases on

collateral review. McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001)

(addressing Apprendi); Varela v. United States, 400 F.3d 864, 867-68 (11th Cir.)

(per curiam), cert. denied, __ U.S. __, 126 S.Ct. 312 (2005) (addressing Blakely

and Booker). Ramiro’s claim that he was convicted of a nonexistent offense,

presumably addressing the second prong of the savings clause of § 2255, is

ineffective because he cannot satisfy the first prong of the test. Wofford, 177 F.3d

at 1244 (requiring the prisoner to satisfy all three prongs). Therefore, Ramiro’s

petition does not satisfy the Wofford test, and he may not use the savings clause of

§ 2255 to file a § 2241 petition.

      Additionally, House does not support Ramiro’s position. House restates the

well established rule that actual innocence may overcome a procedural default.



                                          8
House, __ U.S. at __, 126 S.Ct. at 2076-77. Nonetheless, we will not address the

question of whether Ramiro has overcome his procedural default until Ramiro has

established that the savings clause of § 2255 applies to him and, therefore, that he

can validly bring his § 2241 petition. Wofford, 177 F.3d at 1244 n. 3.

Consequently, we need not rule on Ramiro’s claims regarding his actual innocence,

the impediments that prevented him from meeting the procedural requirements of

§ 2255, and the alleged Booker errors that were committed at his trial. Because

Ramiro has failed to show that the savings clause of § 2255 applies to enable him

to file his § 2241 petition, the district judge did not err by dismissing Ramiro’s

§ 2241 petition.

                                III. CONCLUSION

      Ramiro bases his appellate challenge to his federal conviction for drug-

trafficking crimes on his argument that the savings clause of § 2255 applies to

permit him to file his § 2241 petition. Because we have concluded that Ramiro’s

petition does not satisfy the Wofford test, he may not use the savings clause of

§ 2255 to file a § 2241 petition. Accordingly, the district judge's dismissing

Ramiro’s § 2241 petition is AFFIRMED.




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