                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-2187
BENJAMIN BARRY KRAMER,
                                            Petitioner-Appellant,

                                v.


KEITH E. OLSON, Warden, United States Penitentiary,
Terre Haute, Indiana,
                                   Respondent-Appellee.
                      ____________
            Appeal from the United States District Court
     for the Southern District of Indiana, Terre Haute Division.
    No. 2:02-cv-00317-JDT-WTL—John Daniel Tinder, Judge.
                          ____________
  SUBMITTED JULY 10, 2003—DECIDED OCTOBER 10, 2003
                    ____________



  Before FLAUM, Chief Judge, and BAUER, and MANION,
Circuit Judges.
  PER CURIAM. Federal prisoner Benjamin Kramer peti-
tioned for a writ of habeas corpus under 28 U.S.C. § 2241,
challenging his conviction under Richardson v. United
States, 526 U.S. 813 (1999). The district court concluded
that Kramer could not proceed under § 2241 because the
principal means of attacking a federal conviction, a motion
to vacate under 28 U.S.C. § 2255, was not inadequate to
test the legality of Kramer’s conviction. The district court
2                                                No. 03-2187

accordingly characterized Kramer’s filing as a mislabeled
§ 2255 motion and dismissed for lack of jurisdiction because
Kramer had once before sought relief under § 2255 and had
not received our permission to do so again. We affirm.
   Between 1982 and 1986 Kramer and others imported
several hundred thousand pounds of Columbian marijuana
into the United States. A federal jury in the Southern
District of Illinois found Kramer guilty of engaging in a
continuing criminal enterprise (“CCE”), see 21 U.S.C. § 848,
and of conspiracy to distribute marijuana, see id. §§ 846,
841(a)(1). Kramer was sentenced to a mandatory term of
life imprisonment without parole on the CCE count (reflect-
ing the jury’s finding that Kramer acted as a principal
administrator of the CCE), and to a concurrent term of 40
years’ imprisonment on the conspiracy count. We affirmed.
United States v. Kramer, 955 F.2d 479 (7th Cir.), cert.
denied, 506 U.S. 998 (1992).
  Several years later Kramer moved to vacate his convic-
tions under § 2255. As relevant here, he argued that the
Supreme Court’s decision in Rutledge v. United States, 517
U.S. 292 (1996), rendered the convictions invalid. In
Rutledge the Supreme Court held that conspiracy under
§ 846 is a lesser included offense of the CCE violation. See
id. at 300. In light of Rutledge, Kramer’s convictions for
both conspiracy and CCE could not stand. Predictably, the
district court vacated the conspiracy count (handing Kramer
a rather hollow victory that eliminated the 40-year sentence
but left the life sentence intact), subject to reinstatement
should the CCE conviction itself ever be vacated.
  Kramer now seeks exactly that, relying this time on
Richardson v. United States, 526 U.S. 813 (1999), which
also analyzes the CCE statute. The statute defines a
“continuing criminal enterprise” as a violation of the federal
drug laws that is part of a “continuing series of violations.”
See 21 U.S.C. § 848(c). Richardson holds that each underly-
No. 03-2187                                                 3

ing violation in the “continuing series” is an element of the
CCE offense. Richardson, 526 U.S. at 817-18, 824. Conse-
quently, a jury must agree unanimously as to which pred-
icate “violations” make up the “continuing series of viola-
tions.” Id. at 815, 824. Richardson overruled this court’s
precedent that allowed for conviction without unanimity
about the specific CCE predicates. See, e.g., Kramer, 955
F.2d at 486-87. Thus, in accordance with our pre-Richard-
son decisions, Kramer’s jury was not told that it needed to
agree about which underlying drug transactions comprised
the continuing series, but only that it must agree that
Kramer committed three violations of the federal drug laws.
  With Richardson in his quiver, Kramer filed in the
Southern District of Illinois what he styled a petition for a
writ of habeas corpus under § 2241 or, alternatively, a
§ 2255 motion. The district court dismissed the suit because
a § 2241 petition must be filed in the district with jurisdic-
tion over the petitioner’s custodian, see Samirah v.
O’Connell, 335 F.3d 545, 551 (7th Cir. 2003), which in
Kramer’s case is the Southern District of Indiana. Alterna-
tively, the court held that it lacked jurisdiction over a
second § 2255 motion absent authorization from this court.
See 28 U.S.C. § 2255 ¶ 8 (limiting prisoners to one collateral
attack without appellate authorization); Carter v. United
States, 312 F.3d 832, 833 (7th Cir. 2002). So Kramer refiled
his § 2241 petition in the Southern District of Indiana.
  The Indiana district court concluded that, despite the
document’s § 2241 label, it was really an unauthorized
second § 2255 motion. The court noted that a prisoner may
not use § 2241 to attack a conviction or sentence except in
the narrow class of cases where § 2255 is “inadequate or
ineffective” to test the legality of the prisoner’s detention.
28 U.S.C. § 2255 ¶ 5. Concluding that Kramer’s Richardson
claim did not bring him within that narrow exception, the
court dismissed the petition for lack of jurisdiction. Kramer
appeals.
4                                                 No. 03-2187

   Ordinarily § 2255 is the exclusive means for a federal
prisoner to attack his conviction. But § 2255 contains a
“savings clause” permitting prisoners to proceed under
§ 2241 (usually reserved for attacking the execution, not
imposition, of a sentence) in those cases where § 2255 is
“inadequate or ineffective to test the legality of [the] deten-
tion.” 28 U.S.C. § 2255 ¶ 5. We have explained that § 2255
is “inadequate” when its provisions limiting multiple § 2255
motions prevent a prisoner from obtaining review of a legal
theory that “establishes the petitioner’s actual innocence.”
See Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002).
Thus, Kramer must first show that the legal theory he
advances relies on a change in law that both postdates his
first § 2255 motion (for failure to raise a claim the first time
around does not render § 2255 “inadequate”) and “eludes
the permission in section 2255 for successive motions.” See
In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998). Second,
he must establish that his theory supports a non-frivolous
claim of actual innocence. See Taylor, 314 F.3d at 835
(“Every court that has addressed the matter has held that
§ 2255 is ‘inadequate or ineffective’ only when a structural
problem in § 2255 forecloses even one round of effective
collateral review—and then only when as in Davenport the
claim being foreclosed is one of actual innocence.”); see also
Cooper v. United States, 199 F.3d 898, 901 (7th Cir. 1999)
(“A valid claim of actual innocence would be enforceable
under § 2241 . . . if relief under [§ 2255] was not . . . avail-
able.”).
  As to the first requirement, Richardson was decided after
Kramer’s first § 2255 motion, and so we focus on whether a
claim under it satisfies the criteria to file a second § 2255
motion (making resort to § 2241 unnecessary). See 28
U.S.C. § 2255 ¶ 8. Kramer does not rely on new evidence of
his innocence (the criteria for authorization under ¶ 8(1)),
so he may obtain our authorization under ¶ 8 only if
Richardson announces a new rule of constitutional law
made retroactive by the Supreme Court, id. § 2255 ¶ 8(2).
No. 03-2187                                                      5

   Richardson does not announce a new constitutional rule.
Rather, it interprets the statutory phrase “series of viola-
tions,” and holds that it defines “several elements” of a CCE
offense. Richardson, 526 U.S. at 815-18. Thus, although
Richardson may have constitutional consequences (jury
unanimity as to the specific violations), it is a statutory
decision that does not state a new rule of constitutional law.
See Lanier v. United States, 220 F.3d 833, 838 (7th Cir.
2000) (“Richardson simply articulated the meaning of
‘continuing series of violations’ in § 848 . . . .”); see also
Gray-Bey v. United States, 209 F.3d 986, 989 (7th Cir. 2000)
(statutory decision with “constitutional fallout” is not a
“ ‘new rule of constitutional law’ ”). Consequently, Kramer’s
Richardson claim eludes the requirements for filing a
second § 2255 motion.
  Kramer now confronts the second, more onerous hurdle:
actual innocence. To surmount the obstacle, Kramer
analogizes himself to petitioners with claims under Bailey
v. United States, 516 U.S. 137 (1995), and Jones v. United
States, 529 U.S. 848 (2000), who we have allowed to proceed
under § 2241.1 See In re Davenport, 147 F.3d at 611-12
(Bailey claim cognizable under § 2241); see also United
States v. Prevatte, 300 F.3d 792, 802 (7th Cir. 2002) (same
for Jones claim).
  At first glance, Kramer’s Richardson claim does resemble
one based on Bailey or Jones. Bailey, Jones, and Richardson
claims all rely on Supreme Court decisions interpreting a
statute. In Bailey the Supreme Court held that mere


1
   Kramer also relies on Garza v. Lappin, 253 F.3d 918 (7th Cir.
2001). But Garza dealt with a claim that the petitioner’s execution
would violate international human rights norms, and is thus not
particularly helpful for analyzing Kramer’s claim. Additionally,
the panel in Garza acknowledged the “very unusual facts” of that
case, id. at 921, and we think its applicability beyond those facts
is limited.
6                                                No. 03-2187

possession of a firearm does not violate the “use” prong of
18 U.S.C. § 924(c), as had previously been the law in this
circuit. Bailey, 516 U.S. at 137. Similarly, in Jones the
Court reversed our interpretation of 18 U.S.C. § 844(i) and
held that igniting a private residence (if linked to interstate
commerce only by its receipt of interstate natural gas) does
not violate the federal arson statute. See Jones, 529 U.S. at
850-51, 856-57. We allowed petitioners premising claims on
those opinions to proceed under § 2241 because the unavail-
ability of § 2255 effectively prevented them from obtaining
review of what may have been a fundamental flaw in their
convictions—the possibility that the convictions hinged on
conduct Congress never intended to criminalize. See
Prevatte, 300 F.3d at 802; Davenport, 147 F.3d at 611. In
other words, § 2255 was inadequate because the asserted
defect was one “so fundamental . . . as having been impris-
oned for a nonexistent offense.” Davenport, 147 F.3d at 611;
see also Cooper, 199 F.3d at 901 (discussing Davenport and
noting that petitioner there was “convicted of a nonexistent
crime, which in anyone’s book is a clear miscarriage of
justice”).
  Kramer’s Richardson claim is distinguishable from those
asserted under Bailey or Jones. After Bailey and Jones,
certain prisoners could admit everything charged in their
indictment, but the conduct no longer amounted to a crime
under the statutes (as correctly understood). Unlike
someone asserting a claim based on Bailey or Jones,
Kramer cannot admit committing the charged conduct and
still escape punishment under the CCE statute. The jury at
Kramer’s trial heard evidence establishing that he helped
import seven massive boatloads of marijuana (weighing
from 14,000 to 152,000 pounds) into the United States.
Even though the jury was not required to agree unani-
mously about which of those seven transactions constituted
the “series of violations,” such a shortfall has no bearing on
whether Kramer’s conduct violated the CCE statute. See
No. 03-2187                                                7

Jeffers v. Chandler, 253 F.3d 827, 831 (5th Cir. 2001) (per
curiam) (“Richardson . . . has no effect on whether the facts
in [petitioner’s] case would support his conviction for a
substantive offense.”). Thus, he cannot advance a non-
frivolous claim that, after Richardson, he is actually
innocent of conducting a criminal enterprise. Cf. Taylor, 314
F.3d at 836 (petitioner’s claim that previous § 2255 motion
was decided incorrectly was not a defect on par with a
Bailey claim). We thus join the Fifth Circuit and the
Eleventh Circuit in concluding that a Richardson claim is
not the sort that will permit passage through the narrow
opening of § 2255’s savings clause. See Sawyer v. Holder,
326 F.3d 1363, 1366 (11th Cir. 2003) (“[A] Richardson claim
is not the type of defect that opens the portal to a § 2241
proceeding.”); Jeffers, 253 F.3d at 830-31 (rejecting argu-
ment that Richardson claim could establish petitioner’s
actual innocence); see also Wesson v. U.S. Penitentiary
Beaumont Tex., 305 F.3d 343, 347-48 (5th Cir. 2002) (per
curiam) (same); cf. Cephas v. Nash, 328 F.3d 98, 107-08
(2d Cir. 2003) (holding that jury verdict of guilty on four
substantive narcotics violations conclusively negated
petitioner’s “Richardson-based claim of actual innocence”).
  Accordingly, we AFFIRM the judgment of the district court
dismissing Kramer’s petition as an unauthorized successive
§ 2255 motion.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit



                   USCA-02-C-0072—10-10-03
