                                                     [DO NOT PUBLISH]


          IN THE UNITED STATES COURT OF APPEALS
                                                             FILED
                  FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                   ________________________  ELEVENTH CIRCUIT
                                                      FEBRUARY 22, 2008
                          No. 07-14587                THOMAS K. KAHN
                      Non-Argument Calendar                CLERK
                    ________________________

                  D. C. Docket No. 07-00019-CV-2

ALFRED WAYNE LEE,



                                                      Petitioner-Appellant,

                               versus

WARDEN JOSE M. VAZQUEZ,

                                                              Respondent,

WARDEN DEBORAH HICKEY,

                                                     Respondent-Appellee.

                    ________________________

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

                        (February 22, 2008)
Before BIRCH, DUBINA and CARNES, Circuit Judges.

PER CURIAM:

       Alfred Wayne Lee, a federal prisoner, appeals the district court’s dismissal

of his pro se § 2241 petition for habeas corpus relief. Lee contended in that

petition that the Florida district court that tried and convicted him for possession

of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1) lacked subject matter

jurisdiction. According to Lee, his continued confinement therefore amounts to

involuntary servitude in violation of his constitutional rights. The reason that he is

attempting to circumvent 28 U.S.C. § 2255 is that his conviction and sentence

were affirmed seven years ago, see United States v. Lee, 298 F.3d 1306 (11th Cir.

2000), cert. denied, 532 U.S. 907, 121 S. Ct. 1232 (2001), and he is prevented

from having his claim decided in a § 2255 motion by the statute of limitations.

See 28 U.S.C. § 2255(f)(1). The district court dismissed Lee’s petition, adopting

the report and recommendation of the magistrate judge, which concluded that Lee

could not satisfy the savings clause of § 2255.1

       1
          Although the district court’s order also noted that Lee’s petition “actually falls within
the ambit of § 2255, and is an unauthorized successive motion,” the court’s dismissal of the
petition was actually based upon its conclusion that Lee failed to satisfy § 2255’s savings clause.
Despite the court’s statements equating Lee’s petition to a successive § 2255 motion, its order
ultimately adopted the report and recommendation of the magistrate judge “as the opinion of this
Court.” If the court had construed Lee’s petition as a § 2255 motion and dismissed it as
successive, he would be required to obtain a certificate of appealability in order to appeal. See
28 U.S.C. § 2253(c)(1)(B). However, “a federal prisoner who proceeds under § 2241 does not

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       Lee argues on appeal that the district court had jurisdiction to review his §

2241 petition because it was properly addressed to the warden of the prison

facility in which he is incarcerated. He further maintains that his petition does not

challenge the validity of his conviction or sentence and that the district court erred

by failing to consider the merits of his § 2241 petition.2

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

that this Court reviews de novo.” Sawyer v. Holder, 326 F.3d 1363, 1365 n.4

(11th Cir. 2003). A petitioner typically mounts a collateral attack on the validity

of his federal conviction or sentence by filing a motion under 28 U.S.C. § 2255.

Id. at 1365. However, the savings clause of § 2255 permits federal prisoners to

file a habeas petition pursuant to § 2241 in some limited circumstances. See 28

U.S.C. §§ 2241(a), 2255. That provision 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


need a COA to proceed.” Sawyer v. Holder, 326 F.3d 1363, 1364 n.3 (11th Cir. 2003). Lee may,
therefore, proceed before this Court without a COA.
       2
          Lee also contends that the district court improperly construed his § 2241 petition as a
successive motion under § 2255. He argues that his initial § 2255 motion cannot be considered a
first motion because the court had failed to give him the warnings required by Castro v. United
States, 540 U.S. 375, 383, 124 S. Ct. 786, 792 (2003). Having raised this issue for the first time
in his reply brief, it is not properly before this Court. See Lovett v. Ray, 327 F.3d 1181, 1183
(11th Cir. 2003). In any event, we have already noted that the district court’s dismissal of Lee’s
petition was based on his failure to satisfy the savings clause, not on the court’s characterization
of his petition as a § 2255 successive motion.

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      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.

Id. § 2255(e). Accordingly, a prisoner may file a § 2241 petition pursuant to the

savings clause if an otherwise available remedy under § 2255 is inadequate or

ineffective. See id.

      This Court has held that § 2255 is inadequate or ineffective within the

meaning of the savings clause 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). If all three of these

criteria are met, “the savings clause of § 2255 applies to open the portal to a §

2241 proceeding.” Id. at 1244 n.3.

      After careful review of the record and consideration of the parties’ briefs,

we conclude that the district court properly dismissed Lee’s § 2241 petition. His

petition does not claim that he was convicted of a crime that a retroactively

applicable Supreme Court decision has made nonexistent. See id. at 1244.



                                          4
Instead, it claims that the district court that convicted Lee lacked subject matter

jurisdiction, a claim that he had ample opportunity to raise at trial, on direct

appeal, and in a § 2255 petition. Indeed, Lee previously contested the district

court’s subject matter jurisdiction by filing a Fed. R. Crim. P. 12(b)(2) motion to

dismiss the indictment and then by appealing the court’s denial of that motion.

Because Lee cannot satisfy the Wofford test, the savings clause of § 2255 does not

apply and Lee cannot open the portal to a § 2241 proceeding. See id. at 1244 n.3.

      Despite his inability to satisfy the Wofford test, Lee argues that his petition

was properly before the district court because he directed it to the warden of the

prison facility in which he is incarcerated. That argument is frivolous. Our

Wofford decision establishes that naming the proper official as the respondent is

not enough. See id. at 1244. The prisoner must be able to open the portal to §

2241 by establishing that the savings clause applies. See id.

      AFFIRMED.




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