           Case: 15-13621    Date Filed: 09/23/2016   Page: 1 of 8


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-13621
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 2:14-cv-00183-LGW-RSB



EVERETTE SIMMONS,

                                                           Petitioner-Appellant,

                                   versus

WARDEN,

                                                         Respondent-Appellee.

                      ________________________

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

                            (September 23, 2016)

Before TJOFLAT, ROSENBAUM, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Everett Simmons, a federal prisoner proceeding pro se, appeals from the

district court’s dismissal of his 28 U.S.C. § 2241 habeas corpus petition for failure

to satisfy 28 U.S.C. 2255(e)’s savings clause. Simmons’s § 2241 petition, filed in

the Southern District of Georgia, challenges the validity of his conviction in the

Eastern District of Missouri for conspiracy to distribute and possess with intent to

distribute cocaine, under 21 U.S.C. § 846, which the Eighth Circuit affirmed on

direct appeal. In his § 2241 petition, Simmons asserts that numerous trial errors

led to his conviction, that he received ineffective assistance of counsel on direct

appeal, and that the § 2255 court later misconstrued his motion to vacate and failed

to properly address his claims of ineffective assistance of counsel.        He also

contends that the Supreme Court’s decision in Dretke v. Haley, 541 U.S. 386, 124

S. Ct. 1847 (2004), authorizes review of his § 2241 petition because he alleged

actual innocence.

      Whether a prisoner may bring a § 2241 petition under the savings clause of

§ 2255(e) is a question of law that we review de novo. Bryant v. Warden, FCC

Coleman-Medium, 738 F.3d 1253, 1262 (11th Cir. 2013). We liberally construe

the filings of pro se parties. Tannenbaum v. United States, 148 F.3d 1262, 1263

(11th Cir. 1998).

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

sentence must be brought under § 2255. Sawyer v. Holder, 326 F.3d 1363, 1365


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(11th Cir. 2003).    Section 2255 grants federal prisoners a cause of action to

challenge their sentences as unconstitutional or otherwise unlawful and delineates

the procedure for adjudicating these actions. See 28 U.S.C. § 2255. In addition,

the so-called “savings clause” contained in § 2255(e) permits a federal court to

entertain a federal prisoner’s § 2241 habeas petition in the limited circumstances

where the prisoner demonstrates that the remedy in § 2255 is “inadequate or

ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e).

      Because the savings clause is a jurisdictional provision, a petitioner must

show that § 2255 is “inadequate or ineffective” before the district court has

jurisdiction to review the § 2241 petition. Williams v. Warden, Fed. Bureau of

Prisons, 713 F.3d 1332, 1339–40 (11th Cir. 2013). In other words, whether a

federal prisoner pursing a § 2241 petition meets the § 2255(e) savings clause, and

thereby opens a portal to review of the merits of the § 2241 petition, is a threshold

consideration that must be resolved before reaching the merits of the § 2241

petition.

      We have stated that § 2255 is “inadequate or ineffective” if the petitioner

had no “genuine opportunity” to raise the claim in a § 2255 motion. Bryant, 738

F.3d at 1272. So, if there was a genuine opportunity to raise the claim in a § 2255

motion, the claim cannot be brought under § 2241. See Harris v. Warden, 801

F.3d 1321, 1324 (11th Cir. 2015) (“It is axiomatic that claims cognizable under


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§ 2255 cannot be brought under § 2241.”). Moreover, procedural bars to a § 2255

motion, such as a limitations period or procedural default, generally do not make

the remedy of § 2255 inadequate or ineffective. Zelaya v. Sec’y, Fla. Dep’t of

Corr., 798 F.3d 1360, 1370 (11th Cir. 2015). Similarly, although federal prisoners

are subject to a bar on filing second or successive § 2255 motions unless they meet

specific statutory requirements, see 28 U.S.C. §§ 2244(b), 2255(h), that bar does

not render § 2255 inadequate or ineffective to test the legality of the petitioner’s

detention within the meaning of the savings clause. Gilbert v. United States, 640

F.3d 1293, 1308 (11th Cir. 2011) (en banc). In other words, a prisoner cannot

evade the successive-applications bar by filing a § 2241 motion instead. See id.

      We have recognized one particular instance in which “no genuine

opportunity” exists to raise a claim in a § 2255 motion. See Williams, 713 F.3d at

1343. Specifically, no genuine opportunity exists if precedent in the circuit of

conviction squarely foreclosed the claim now being raised in a § 2241 petition

throughout the prisoner’s sentencing, direct appeal, and first § 2255 motion. Id.;

see also Bryant, 738 F.3d at 1272. In those circumstances, according to this

Court’s decision in Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999), the

savings clause is available to challenge a conviction where the petitioner makes

two additional showings: (1) the claim is based on a retroactively applicable

Supreme Court decision; and (2) “the holding of that Supreme Court decision


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establishes the petitioner was convicted for a nonexistent offense.” Id.; see also

Williams, 713 F.3d at 1343–44.

      While we have since noted that the Wofford test is “‘only dicta’ as it applies

to challenges to convictions,” Zelaya, 798 F.3d at 1370-71 (quoting Gilbert, 640

F.3d at 1319), we also “have never doubted that the savings clause, at the very

least, applies to actual-innocence claims due to a conviction for a non-existent

offense.” Id. (quoting Bryant, 738 F.3d at 1281). Put differently, the savings

clause gives a prisoner “an avenue to seek relief” “when a Supreme Court decision

subsequent to conviction means that a petitioner’s offense conduct is no longer

criminal.”   Williams, 713 F.3d at 1343 (citing Wofford, 177 F.3d at 1244).

However, although the Wofford test is directed to claims of actual innocence,

actual innocence alone does not “open the gateway to relief under the savings

clause.” Zelaya, 798 F.3d at 1371–72. “That is, the prisoner must show some sort

of procedural defect in § 2255, and not merely assert that he has a particularly

weighty substantive claim.” Id.

      In his § 2241 petition, Simmons argued that he was convicted on the basis of

evidence that should not have been admitted at trial (such as co-conspirator

statements made after the conspiracy ended), that the trial court erred in ruling on

various other matters, that his appellate counsel was ineffective for filing an

Anders brief on direct appeal, and that the § 2255 court misconstrued his claims


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and improperly applied a procedural bar to his claim of ineffective assistance of

counsel. He claims that the government at trial introduced no legally competent

evidence on which to base his conviction and overcome the presumption of

innocence, and that, as a result of the various errors asserted, he was denied his

rights under the Fifth, Sixth, and Fourteenth Amendments to the United States

Constitution.

      Here, Simmons has not met the requirements of the savings clause.

Simmons has not identified any Eighth Circuit precedent that, throughout

Simmons’s sentencing, direct appeal, and first § 2255 motion, squarely foreclosed

any of the claims he brought in his § 2241 petition. Accordingly, he has not shown

that he was deprived of a “genuine opportunity” to raise his current claims in a

§ 2255 motion. See Williams, 713 F.3d at 1343. Indeed, it appears that Simmons’s

§ 2241 petition largely reiterates claims he previously raised in his § 2255 motion.

      Even assuming that the § 2255 court, or the trial and appellate courts before

it, reached an incorrect outcome on Simmons’s claims, that is not enough to show

that § 2255 was inadequate or ineffective as a remedy. See Bryant, 738 F.3d at

1272; Williams, 713 F.3d at 1348. Likewise, the § 2255 court’s application of a

procedural bar to some of Simmons’s claims does not render § 2255 inadequate or

ineffective. See Zelaya, 798 F.3d at 1370. Rather, “[Simmons] has to show that




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the test was not procedurally adequate because erroneous circuit precedent

foreclosed his argument.” Williams, 713 F.3d at 1348. He has not done so here.

      Moreover, Simmons does not rely on any retroactive Supreme Court

decision that was not previously available to him and that establishes that his

conduct is no longer criminal. Id. at 1343–44; Wofford, 177 F.3d at 1244. As far

as we can tell from Simmons’s filings, the law applicable to his claims has not

changed from the time of his conviction in 2009 through the date of our decision in

this appeal. And even if such a decision were applicable to Simmons’s claims,

Simmons still likely could not obtain relief via the savings clause without a

showing that the claims were foreclosed by circuit precedent throughout the

underlying proceedings. See Samak v. Warden, FCC Coleman-Medium, 766 F.3d

1271, 1275 (11th Cir. 2014) (affirming the dismissal of a § 2241 petition solely

because the petitioner could not show that “circuit precedent squarely foreclosed

his claim”).

      Finally, Simmons’s reliance on Dretke is misplaced. In Dretke, the Supreme

Court addressed, but declined to resolve, the question of whether an actual-

innocence exception permitted consideration of a procedurally defaulted challenge

to a non-capital sentence raised in a 28 U.S.C. § 2254 petition for habeas corpus.

541 U.S. at 393–94, 124 S. Ct. at 1852. But even if Dretke did resolve that

question, it would not help Simmons. In Zelaya, we rejected a prisoner’s reliance


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on similar cases from this Court which had established that “an actual innocence

claim may excuse a non-jurisdictional procedural bar,” such as a statute of

limitations or a procedural default. 798 F.3d at 1372 (citing Rozzelle v. Sec’y, Fla.

Dep’t of Corr., 672 F.3d 1000, 1011–12 & n.14 (11th Cir. 2012), and McKay v.

United States, 657 F.3d 1190, 1998 (11th Cir. 2001)). We explained that an actual

innocence claim could not excuse the requirements of the savings clause because

“[s]ection 2255(e) is not a procedural bar; instead, it imposes a jurisdictional

condition on the availability of the § 2241 petition.” Zelaya, 798 F.3d at 1372

(emphasis in original).     Therefore, even a credible claim of actual innocence

“cannot by itself open the gateway to § 2241 relief.”         Id. at 1373.    Instead,

Simmons must comply with the statutory framework Congress established, which

means, because he has already filed one § 2255 motion, that he must comply with

the requirements under § 2255(h) relating to second or successive § 2255 motions.

See id.

      Because Simmons has not shown that § 2255 is inadequate or ineffective to

test the legality of his detention, the savings clause of § 2255(e) is not available to

open a portal to § 2241 relief, and the district court properly dismissed his § 2241

petition for lack of subject-matter jurisdiction.

      AFFIRMED.




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