                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                   FILED
                                                          U.S. COURT OF APPEALS
                                   No. 09-10905             ELEVENTH CIRCUIT
                                                                JULY 31, 2009
                               Non-Argument Calendar
                                                             THOMAS K. KAHN
                             ________________________
                                                                   CLERK

                        D. C. Docket No. 08-00019-CV-3

MICHAEL TRUPEI,



                                                             Petitioner-Appellant,

                                      versus

HARVEY G. LAPPIN,
Director of Federal Bureau
of Prisons (BOP),
WALT WELLS,
Warden at “CCA”,
                                                          Respondents-Appellees.


                             ________________________

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

                                  (July 31, 2009)

Before DUBINA, Chief Judge, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:

      Appellant Michael Trupei appeals the dismissal of his pro se petition for

writ of habeas corpus under 28 U.S.C. § 2241, which dismissal was based on

Trupei’s failure to demonstrate that his petition was proper under the “savings

clause” of 28 U.S.C. § 2255. Trupei argues that the district court erred in

dismissing his § 2241 petition because the newly discovered evidence supporting

his claim of innocence could not be used to support his prior § 2255 motion, which

Trupei asserts makes § 2255 “inadequate” for the relief he now seeks.

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

review de novo. Darby v. Hawk-Sawyer, 405 F.3d 942, 944 (11th Cir. 2005).

      We explained the interplay and distinctions between § 2241 petitions and

§ 2255 motions at length in Darby:

             The “savings clause” of § 2255 permits a prisoner to file
             a § 2241 petition only if an otherwise available remedy
             under § 2255 is “inadequate or ineffective” to test the
             legality of his detention. 28 U.S.C. § 2255. The
             Antiterrorism and Effective Death Penalty Act’s
             (AEDPA’s), Pub. L. No. 104-132, 110 Stat. 1214 (1996),
             restrictions on successive § 2255 motions, standing
             alone, do not render that section “inadequate or
             ineffective” within the meaning of the savings clause,
             and, consequently, a petitioner who has filed and been
             denied a previous § 2255 motion may not circumvent the
             successive motion restrictions simply by filing a petition
             under § 2241. Wofford v. Scott, 177 F.3d 1236, 1245
             (11th Cir.1999). The savings clause only applies to “open

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             a portal” to a § 2241 proceeding when (1) the “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 non-existent
             offense; and, (3) circuit law squarely foreclosed such a
             claim at the time it otherwise should have been raised.”
             Id. at 1244.

405 F.3d at 944-945 (emphasis added); see also Flint v. Jordan, 514 F.3d 1165,

1168 (11th Cir.) (holding that the failure to meet the first prong of the savings

clause analysis – a retroactively applicable Supreme Court decision – ends the

inquiry), cert. denied, 129 S.Ct. 222 (2008); Wofford 177 F.3d at 1244 n.3 (“Once

the savings clause of § 2255 opens 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[.]”).

      After reviewing the record and reading the parties’ briefs, we conclude that

the district court did not err in dismissing Trupei’s § 2241 petition on the record

before it. Nowhere in his petition, his briefing in the district court, or in his

appellate brief does Trupei cite a retroactive Supreme Court decision that applies to

his claim. Rather, Trupei merely asserts that his discovery of new evidence to

support his claim of innocence makes § 2255 inadequate or ineffective. This does

not meet the applicable standard. Darby, 405 F.3d at 945. Trupei has therefore

failed to meet the first prong of the savings clause test, which ends our inquiry.



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Flint, 514 F.3d at 1168. Accordingly, we affirm the judgment of dismissal.

      Upon review of the record and consideration of the parties’ briefs, we affirm

the dismissal.

      AFFIRMED.




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