                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            JUL 06, 2006
                             No. 06-11018                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                D. C. Docket No. 06-00033-CV-OC-10GRJ

ROBERT CLARENCE POTTS, III,


                                                          Petitioner-Appellant,

                                  versus

WARDEN, FCC Coleman - USP,

                                                        Respondent-Appellee.

                       ________________________

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

                              (July 6, 2006)

Before BLACK, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
      Federal prisoner Robert Clarence Potts, III, appeals the district court’s

dismissal of his petition for writ of habeas corpus filed pursuant to 28 U.S.C.

§ 2241. Potts claims his constitutional rights were violated because he was

sentenced for drug quantities neither charged in the indictment nor proven to a jury

beyond a reasonable doubt, in violation of Apprendi v. New Jersey, 120 S. Ct. 2348

(2000), Blakely v. Washington, 124 S. Ct. 2531 (2004), and United States v.

Booker, 125 S. Ct. 738 (2005). Potts also claims he is actually innocent of the

offense. We affirm the district court’s denial of Potts’ petition.

      “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 are brought

under 28 U.S.C. § 2255. Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir. 2003).

However, under limited circumstances, a provision of § 2255 permits a federal

prisoner to file a habeas petition pursuant to § 2241. Id. That provision, known as

the “savings clause,” provides:

      An 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.



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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 the

remedy provided for under § 2255 is inadequate or ineffective. Sawyer, 326 F.3d

at 1365. 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 establishes 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. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999). We have held the constitutional

rules announced in Apprendi, Blakely, and Booker do not apply retroactively on

collateral review. Varela v. United States, 400 F.3d 864, 867-68 (11th Cir.), cert.

denied, 126 S. Ct. 312 (2005); McCoy v. United States, 266 F.3d 1245, 1258 (11th

Cir. 2001).

      Potts is challenging the validity of his sentence, which should have been

raised in a § 2255 motion, yet he admits he never filed one. The district court did

not err in denying Potts’ § 2241 petition because the savings clause does not apply

to his claim. He cannot meet the initial prong of the savings clause test in Wofford

because his claim is based on Supreme Court decisions that we have expressly held

are not retroactively applicable on collateral review.



                                           3
      Potts’ contention that Apprendi should have been applied retroactively to his

case because he raised an Apprendi-based claim in his first petition for writ of

certiorari lacks merit because he did not raise his Apprendi claim on direct appeal.

We do not examine the other prongs of the Wofford test because Potts must meet

all three in order to proceed. Additionally, we do not examine Potts’ actual

innocence claim because a petitioner may not assert actual innocence until he has

“open[ed] the portal” to a § 2241 proceeding by demonstrating that § 2255’s

savings clause applies to his claim. See Wofford, 177 F.3d at 1244 n.3.

      AFFIRMED.




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