                                                                [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT                       FILED
                           ________________________            U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                                                     June 27, 2006
                                 No. 05-11832                     THOMAS K. KAHN
                             Non-Argument Calendar                    CLERK
                           ________________________

                       D. C. Docket No. 05-20445-CV-KMM

CLIFTON ISAAC DUKES, JR.,

                                                                 Petitioner-Appellant,

                                        versus

UNITED STATES OF AMERICA,

                                                                Respondent-Appellee.


                           ________________________

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

                                   (June 27, 2006)

Before ANDERSON, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:

      Clifton Isaac Dukes, Jr., a pro se federal prisoner, appeals the district court’s

dismissal of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C.
§ 2241. The district court found that the proper vehicle for Dukes’ claims was a

§ 2255 motion to vacate, and noted that Dukes could not file a § 2241 petition

under § 2255’s savings clause to avoid the AEDPA’s rules restricting the filing of

successive § 2255 motions. On appeal, Dukes argues that the trial court erred in

dismissing his § 2241 petition because his sentence of 324 months’ imprisonment

was imposed under a sentencing system that is unconstitutional under United

States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and he

should not be barred from obtaining relief because he is “actually innocent” of the

conduct considered to enhance his sentence.

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

we review de novo. Cook v. Wiley, 208 F.3d 1314, 1317 (11th Cir. 2000).

Typically, collateral attacks on the validity of a federal conviction or sentence must

be brought under § 2255. Sawyer, 326 F.3d at 1365. When a prisoner has

previously filed a § 2255 motion to vacate, he must apply for and receive

permission from this Court before filing a successive § 2255 motion. 28 U.S.C.

§§ 2244(b)(3), 2255; In re Blackshire, 98 F.3d 1293, 1293 (11th Cir. 1996). The

“savings clause” in § 2255, however, permits a prisoner to file a § 2241 petition if

an otherwise available remedy under § 2255 is “inadequate or ineffective to test the

legality of his detention.” 28 U.S.C. § 2255; Sawyer, 326 F.3d at 1365. The



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burden of coming forward with evidence affirmatively showing the inadequacy or

ineffectiveness of the § 2255 remedy rests with the movant. McGhee v. Hanberry,

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

      The 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 AEDPA’s successive-motion rule simply by filing

a petition under § 2241. Wofford v. Scott, 177 F.3d 1236, 1245 (11th Cir. 1999).

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

established that the petitioner was convicted of a “nonexistent offense”; and

(3) “circuit law squarely foreclosed such a claim at the time it otherwise should

have been raised at the petitioner’s trial, appeal, or first § 2255 motion.” Id. at

1244; see also Sawyer, 326 F.3d at 1365-66 (applying the three-part Wofford test).

      In the context of a § 2241 petition, “actual innocence” refers to a defendant’s

actual innocence of the crime of conviction. See Bousley v. United States, 523

U.S. 614, 623, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998). A petitioner can

only establish actual innocence once the savings clause of § 2255 has been applied

to “open a portal” to a § 2241 proceeding. Wofford, 177 F.3d at 1244 n.3.



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      The district court did not err in this case by dismissing Dukes’ § 2241

petition because § 2255’s savings clause does not apply. Dukes’ claim centers on

Booker. Dukes failed to satisfy the first prong of the Wofford test as we have held

that Booker is not retroactively available on collateral review. Varela v. United

States, 400 F.3d 864, 868 (11th Cir.), cert. denied, 126 S.Ct. 312 (2005). Because

Dukes did not satisfy the first prong with regard to his claim, we need not address

the remaining prongs. See Wofford, 177 F.3d at 1244-45 (“[T]he only sentencing

claims that may conceivably be covered by the savings clause are those based upon

a retroactively applicable Supreme Court decision overturning circuit precedent.”).

Because Dukes never “opened the portal” to a § 2241 proceeding, he cannot raise

his claim that he is “actually innocent” of the conduct considered to enhance his

sentence. Therefore, the district court did not err by dismissing Dukes’ petition.

      AFFIRMED.




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