              Case: 12-13841     Date Filed: 03/28/2013    Page: 1 of 6


                                                          [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-13841
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 1:10-cv-20482-RSR



ROBERT J. MARSHALL,

                                                            Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                            Respondent-Appellee.
                           ________________________

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

                                 (March 28, 2013)

Before TJOFLAT, CARNES, and PRYOR, Circuit Judges.

PER CURIAM:

      Robert J. Marshall, a federal prisoner proceeding pro se, appeals the district

court’s denial of his 28 U.S.C. § 2241 petition for a writ of habeas corpus.
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Marshall contends that even though he has already been denied post-conviction

relief under 28 U.S.C. § 2255, he is entitled to it under the savings clause of §

2255(e). He argues that his current claim—that he is innocent of aggravated

identity theft because he did not know that an altered social security number he

unlawfully used belonged to an actual person—was foreclosed by applicable

circuit precedent during his direct appeal and his initial § 2255 proceedings. 1

       We review de novo the availability of habeas relief under § 2241.

Dohrmann v. United States, 442 F.3d 1279, 1280 (11th Cir. 2006). Section

2255(e) bars a § 2241 petition if the prisoner has failed to seek or has already been

denied relief on a § 2255 motion, as Marshall has, “unless it also appears that the

remedy by [§ 2255] motion is inadequate or ineffective to test the legality of his

detention.” 28 U.S.C. § 2255(e); see also Antonelli v. Warden, U.S.P. Atlanta, 542

F.3d 1348, 1352 n.1 (11th Cir. 2008) (“[A] § 2255 motion is the exclusive remedy

for a federal prisoner to collaterally attack his conviction and sentence, except in

the rare cases where it is inadequate to do so.”). The narrow exception to the §

2255(e) bar on § 2241 petitions is called the savings clause. Gilbert v. United


       1
          The government did not seek to enforce Marshall’s plea agreement waiver of his right
to collaterally attack his conviction and sentence, and instead addressed Marshall’s claim on the
merits. For purposes of this appeal only, we will ignore the waiver and consider the merits of
Marshall’s claim. But see Williams v. United States, 396 F.3d 1340, 1342 (11th Cir. 2005)
(holding that, because his plea agreement’s plain language expressly informed him that he was
waiving his right to bring a collateral attack, the petitioner waived his right to bring § 2255
motion).


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States, 640 F.3d 1293, 1305–06 (11th Cir. 2011) (en banc).

       If a petitioner files a § 2255 motion and it is denied, he may not circumvent

the restriction on second or successive § 2255 motions simply by filing a petition

under § 2241. Antonelli, 542 F.3d at 1351. It is the petitioner’s burden to

establish the inadequacy or ineffectiveness of the § 2255 remedy. McGhee v.

Hanberry, 604 F.2d 9, 10 (5th Cir. 1979).2

       This Court has endorsed a three-part test that can be used to determine

whether § 2255 is inadequate or ineffective to test the legality of a prisoner’s

detention under § 2255(e)’s savings clause. See Wofford v. Scott, 177 F.3d 1236,

1244 (11th Cir. 1999). The Wofford test requires a petitioner to show that: (1) his

claim is based on a retroactively applicable Supreme Court decision; (2) the

holding of that Supreme Court decision establishes that he was convicted of a

nonexistent offense; and (3) circuit law squarely foreclosed his claim at the time it

otherwise should have been raised during his trial, direct appeal, or first § 2255

motion.3 Id. The merits of a petitioner’s claim cannot be considered unless he has


       2
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
       3
         In our en banc Gilbert opinion, we explained that when the Wofford panel “stated that
the savings clause would permit a prisoner to bring a § 2241 petition claiming that a retroactively
applicable, circuit law-busting decision of the Supreme Court established that he had been
convicted of a nonexistent crime[,]” that was “only dicta because all Wofford’s claims were
sentencing claims.” Gilbert, 640 F.3d at 1319. In the present case, however, Marshall claims
that he was convicted of a non-existent crime, and we use Wofford test to determine whether his
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“open[ed] the portal” to a § 2241 proceeding by showing that the savings clause of

§ 2255(e) applies. Id. at 1244 n.3. After he satisfies all three requirements of the

Wofford test, he still must establish that he is actually innocent of the crime for

which he has been convicted. Id. at 1244 & n.3.

       Marshall contends that he could not have brought his current claim in his

direct appeal or in his first § 2255 motion because Eighth Circuit precedent

foreclosed it.4 In March 2008 the Eighth Circuit held that in order to convict a

defendant of aggravated identity theft under 18 U.S.C. § 1028A(a)(1) the

government was not required to prove that the defendant knew that the “means of

identification” he unlawfully transferred, possessed, or used actually belonged to

another person. See United States v. Mendoza-Gonzalez, 520 F.3d 912, 915–16

(8th Cir. 2008), vacated, 129 S.Ct. 2377 (2009).5 In Flores-Figueroa, the 2009

Supreme Court decision that Marshall relies on, the Court held that to convict a

claim is saved by the savings clause. See Sawyer v. Holder, 326 F.3d 1363, 1364 (11th Cir.
2003) (“Because we hold that Sawyer was not convicted of a nonexistent offense, and thus, did
not meet the second prong of the Wofford test, his Richardson claim does not fall within the
purview of the savings clause.”) (footnote omitted).
       4
         Marshall was originally convicted in a Missouri federal court, where he brought his
direct appeal and his first § 2255 motion, so Eighth Circuit precedent is the circuit law that that
determines whether “circuit law squarely foreclosed [Marshall’s current] claim at the time it
otherwise should have been raised.” Wofford, 177 F.3d at 1244.
       5
         The Eighth Circuit noted that it had addressed a similar issue in an earlier decision, but
that decision did not directly address the specific issue, and until its Mendoza Gonzalez decision
the court had never “explicitly state[d] that the Government need not prove that a defendant
knew the means of identification was that of an actual person . . . .” Mendoza Gonzalez, 520
F.3d at 916 (citing United States v. Hines, 472 F.3d 1038 1039–40 (8th Cir. 2007)).

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defendant of aggravated identity theft under § 1028A(a)(1) the government does

have to show that the defendant knew that the “means of identification” he

unlawfully transferred, possessed, or used actually belonged to another person.

Flores-Figueroa v. United States, 556 U.S. 646, 647, 129 S.Ct. 1886, 1888 (2009).

In May 2009 the Supreme Court granted certiorari and vacated the Eighth Circuit’s

judgment in Mendoza-Gonzalez, remanding for further consideration in light of its

Flores-Figueroa decision. Mendoza-Gonzalez v. United States, 129 S.Ct. 2377

(2009).

      Applying the three-part Wofford test, the district court concluded that

Marshall’s claim did not meet the requirements of § 2255(e)’s savings clause. The

parties agree that Marshall has met the first two requirements of the test, placing at

issue only the third one. Until 2008, when the Eighth Circuit issued its

Mendoza-Gonzalez decision, that court’s precedent did not squarely foreclose

Marshall’s claim that he did not commit aggravated identity theft because he did

not know that the social security number he had unlawfully used belonged to an

actual person. Marshall had the opportunity to make that argument in his direct

appeal and in his initial § 2255 motion, both of which pre-dated 2008. Because his

claim was not foreclosed at the times when he could have asserted it, he cannot

satisfy the third Wofford requirement. As a result he has failed to “open the

portal,” which is the threshold requirement for entitlement to § 2241 relief.


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Wofford, 177 F.3d at 1244 & n.3. The district court did not err by denying

Marshall’s § 2241 petition.

      AFFIRMED.




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