                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                            No. 10-13924            ELEVENTH CIRCUIT
                                        Non-Argument Calendar           JUNE 14, 2011
                                      ________________________           JOHN LEY
                                                                          CLERK
                           D.C. Docket No. 3:09-cv-00092-DHB-WLB

JUAN MANUEL ORTIZ-ALVEAR,

llllllllllllllllllllllllllllllllllllllll                         Petitioner-Appellant,

                                               versus

U.S. ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllll                         Respondent,

WALT WELLS,

llllllllllllllllllllllllllllllllllllllll                         Respondent-Appellee.

                                     ________________________

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

                                           (June 14, 2011)

Before HULL, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
      Pro se petitioner-appellant Juan Manuel Ortiz-Alvear appeals the district

court’s denial of his habeas petition, brought under 28 U.S.C. § 2241. On appeal,

Ortiz-Alvear argues that the Supreme Court narrowed the scope of the federal

money laundering statute, 18 U.S.C. § 1956(a)(2), in Cuellar v. United States, 553

U.S. 550 (2008), which rendered him actually innocent of his money laundering

conviction. He explains that 28 U.S.C. § 2255 was inadequate to challenge his

conviction based on the retroactive application of Cuellar because he had

previously filed a § 2255 motion. After a thorough review of the record, we

affirm.

      In 1995, Ortiz-Alvear was convicted in the Eastern District of New York for

conspiracy to commit a drug offense, structuring financial transactions to avoid

currency reporting requirements, and money laundering. His convictions were

affirmed on direct appeal, and in 1998 he filed an unsuccessful motion to vacate

under 28 U.S.C. § 2255.

      He was later transferred to a facility in the Southern District of Georgia and

in 2009, Ortiz-Alvear filed the instant § 2241 petition, arguing that he was actually

innocent of the money laundering charges because the Supreme Court’s decision

in Cuellar narrowed the definition of money laundering so that it no longer

covered his conduct. Because he had previously filed a § 2255 motion, he argued

                                          2
that he was entitled to relief under § 2241 via the savings clause in § 2255. The

district court, adopting the magistrate judge’s recommendation, denied relief on

the ground that the Supreme Court had not identified Cuellar as retroactively

applicable. This appeal followed.

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

v. Hawk-Sawyer, 405 F.3d 942, 944 (11th Cir. 2005). Title 28 U.S.C.

§ 2255(e)—the “savings clause”—“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.” Id. at 945 (quotation omitted). Statutory

restrictions on “successive § 2255 motions, standing alone, do not render that

section inadequate or ineffective within the meaning of the savings clause. Thus,

a petitioner who has filed and been denied a previous § 2255 motion may not

circumvent the successive motion restrictions simply by” requesting relief under

§ 2241. Id. (quotation omitted). As this court has explained,

      [t]he savings clause of § 2255 [only] applies to a claim when: 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.

Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999). In order for a prisoner to

                                          3
avail himself of the § 2241 remedy via the savings clause, he must meet all three

criteria articulated in Wofford. See 177 F.3d at 1244.

       When the Supreme Court announces a new rule, that rule is generally only

applicable to criminal cases pending on direct review. Schriro v. Summerlin, 542

U.S. 348, 351 (2004). But new substantive rules, including decisions that narrow

the scope of a criminal statute by interpreting its terms, generally apply

retroactively to cases on collateral review. Id. at 351-52; see also United States v.

Peter, 310 F.3d 709, 711 (11th Cir. 2002) (stating that “[d]ecisions of the Supreme

Court construing substantive federal criminal statutes must be given retroactive

effect.”).

       Ortiz-Alvear was convicted under the federal money laundering statute, 18

U.S.C. § 1956, which “prohibits specified transfers of money derived from

unlawful activities.” Cuellar v. United States, 553 U.S. 550, 556 (2008). Under

subsection (a)(2), it is unlawful to transfer funds “knowing that the transaction is

designed in whole or in part-- (i) to conceal or disguise the nature, the location, the

source, the ownership, or the control of the proceeds of specified unlawful

activity; or (ii) to avoid a transaction reporting requirement under State or Federal

law.” 18 U.S.C. § 1956(a)(2). In Cuellar, the Supreme Court interpreted the term

“designed” to narrow § 1956’s scope, holding that, in a prosecution for

                                           4
concealment money laundering, “how one moves the money is distinct from why

one moves the money.” Id. at 566 (emphasis in original). The Supreme Court

thus held that merely hiding funds during transportation was not a violation of the

statute and that the government must prove that the transportation had the purpose

of concealing the source or ownership of the funds. Id. at 568.

       Ortiz-Alvear argues that the Supreme Court’s narrow interpretation renders

him actually innocent of his money laundering conviction.1 Under the third

Wofford criterion, Ortiz-Alvear may only “open a portal” to a § 2241 proceeding if

“circuit law squarely foreclosed such a claim at the time it otherwise should have

been raised.” Darby, 405 F.3d at 945. Because Ortiz-Alvear’s direct appeal and

first § 2255 were governed by the law of the Second Circuit, it is that circuit’s law

that must have “squarely foreclosed” Ortiz-Alvear’s claim at the time it otherwise

should have been raised.

       Here, the government concedes, and we agree, that Cuellar is retroactively

applicable to cases on collateral review because it established a new substantive

rule of criminal law. But Ortiz-Alvear is not entitled to relief because he must



       1
          Ortiz-Alvear’s passing references to the Suspension Clause and to the concurrent
sentence doctrine are insufficient to raise any argument on appeal. See Chavis v. Clayton County
Sch. Dist., 300 F.3d 1288, 1291 n.4 (11th Cir. 2002) (confirming that “a passing reference in an
appellate brief is insufficient to raise an issue”). Therefore, we decline to address them.

                                               5
meet all three criteria articulated in Wofford to avail himself of the savings clause,

see Wofford, 177 F.3d at 1244, and Ortiz-Alvear cannot show that Second Circuit

law squarely foreclosed his claim at the time of his direct appeal or first § 2255

motion to vacate.2

       Second Circuit precedent did not “squarely foreclose” Ortiz-Alvear’s

claim—that he did not violate § 1956(a)(2)(B)(i) by simply hiding funds during

transportation—until at least 2006, when the court of appeals decided United

States v. Gotti, 459 F.3d 296 (2d Cir. 2006) and United States v. Ness, 466 F.3d 79

(2d Cir. 2006), vacated by Ness v. United States, 553 U.S. 1091 (2008). Prior to

1998, the year in which Ortiz-Alvear filed his § 2255 motion to vacate in the

Eastern District of New York, no circuit precedent squarely foreclosed

Ortiz-Alvear’s claim. Thus, Ortiz-Alvear has failed to “open a portal” to a § 2241

proceeding via the savings clause in § 2255 because he has not met the third prong

of the Wofford test.

       AFFIRMED.




       2
           We may “affirm for any reason supported by the record, even if not relied on by the
district court,” Cochran v. U.S. Health Care Fin. Admin., 291 F.3d 775, 778 n.3 (11th Cir. 2002).

                                               6
