                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                              FILED
                     FOR THE ELEVENTH CIRCUIT
                                              U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                         September 2, 2005
                            No. 04-13718                THOMAS K. KAHN
                        Non-Argument Calendar                CLERK
                      ________________________

                  D. C. Docket No. 03-00275-CV-MMP

VICKI J. FLANAGAN,


                                                        Petitioner-Appellant,

                                 versus

MONICA WETZEL,

                                                       Respondent-Appellee.


                      ________________________

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

                          (September 2, 2005)

Before ANDERSON, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
      Vicki J. Flanagan, a federal prisoner proceeding pro se, appeals the district

court’s dismissal of her habeas corpus petition, filed pursuant to 28 U.S.C. § 2241.

Flanagan contends that because she is actually innocent, it was erroneous for the

district court to dismiss her § 2241 petition. Further, Flanagan insists she is not

trying to circumvent the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA) time limitations for filing a § 2255 motion to vacate, and that the

requirements for filing a successive § 2255 motion have no bearing on the instant

petition. We affirm the district court.

                                  I. DISCUSSION

      The availability of habeas relief under § 2241 presents questions of law

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

A federal prisoner’s petition to challenge the imposition of her sentence must be

brought under § 2255 “unless it also appears that the remedy by motion is

inadequate or ineffective to test the legality of [her] detention.” 28 U.S.C. § 2255.

Accordingly, a § 2241 petition attacking custody resulting from a federally

imposed sentence may be entertained only if the petitioner establishes the remedy

provided for under § 2255 is inadequate or ineffective. See Wofford v. Scott, 177

F.3d 1236, 1245 (11th Cir. 1999) (holding § 2241 may not be used to circumvent

the restrictions on successive § 2255 motions); McGhee v. Hanberry, 604 F.2d 9,

                                          2
10 (5th Cir. 1979) (holding a prior unsuccessful § 2255 motion is insufficient on

its own to establish the ineffectiveness of the § 2255 remedy)1. The burden of

coming forward with evidence affirmatively showing the inadequacy or

ineffectiveness of the § 2255 remedy rests with the petitioner. McGhee, 604 F.2d

at 10. Remedies under § 2255 are considered inadequate if:

      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, 177 F.3d at 1244.

      Flanagan’s first § 2255 motion to dismiss was denied by the district court,

although it is unclear whether it was denied on the merits or because it was filed

six years after the final date of her conviction. The magistrate, however, noted in

his Report & Recommendation the district court likely dismissed the § 2255

motion due to untimeliness. Where a prisoner has filed an initial § 2255 motion

that has already been denied, the district court does not have jurisdiction to act

without us having granted the prisoner permission to file a second, or successive



      1
         In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) we
adopted as binding precedent all Fifth Circuit decisions handed down prior to the
close of business on September 30, 1981.
                                          3
§ 2255 motion to vacate. 28 U.S.C. § 2255.

      Here, Flanagan makes repeated claims of actual innocence as justification

for advancing collateral attacks on her conviction and sentence in a § 2241

petition. It seems to be Flanagan’s position that because her § 2255 was denied

because of AEDPA’s time limitations, and was not addressed on the merits, a

§ 2255 remedy is ineffective and a § 2241 petition is the only available avenue for

her to advance her claims. However, this reasoning is incorrect, as we have held

that just because a past § 2255 motion was unsuccessful does not mean the remedy

it may provide is inadequate. See McGhee, 604 F.2d at 10; Wofford, 177 F.3d at

1245. Moreover, while Flanagan cites to an Eleventh Circuit case as support for

her actual innocence claim, because she does not cite to a new, retroactively

applicable Supreme Court decision, she cannot satisfy any of the requirements of

§ 2255’s savings clause, and thus, a § 2241 petition is an inappropriate avenue for

her to advance her claims. See 28 U.S.C. § 2255; Wofford, 177 F.3d at 1244.

                                II. CONCLUSION

      The district court did not err when it dismissed Flanagan’s § 2241 petition,

and we affirm.

      AFFIRMED.




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