                                                           [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      __________________________         FILED
                                                U.S. COURT OF APPEALS
                            No. 08-12313          ELEVENTH CIRCUIT
                                                   JANUARY 20, 2009
                        Non-Argument Calendar
                                                   THOMAS K. KAHN
                     __________________________
                                                        CLERK

                     D.C. Docket No. 07-00092-CV-2

CHARLESTON KELLEY, JR.,

                                                 Petitioner-Appellant,

                                  versus

WARDEN DEBORAH HICKEY,

                                                 Respondent-Appellee.

                       ________________________

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

                            (January 20, 2009)

Before EDMONDSON, Chief Judge, and BIRCH and PRYOR, Circuit Judges.

PER CURIAM:
       Charleston Kelley, Jr., a federal prisoner appearing pro se, appeals the

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

2241.1 No reversible error has been shown; we affirm.

       In his section 2241 petition, Kelley claimed he actually was innocent of his

continuing criminal enterprise conviction (“CCE”), 21 U.S.C. § 848, based on

Richardson v. United States, 119 S.Ct. 1707 (1999).2 The district court, in

adopting the magistrate judge’s report and recommendation, concluded that Kelley

did not meet the requirements of the savings clause contained in 28 U.S.C. § 2255

and dismissed his habeas petition.

       On appeal, Kelley argues that his actual innocence claim can be heard

pursuant to section 2241 and that it was a fundamental miscarriage of justice for

the district court not to render a merits determination of his claim. We review de

novo the availability of habeas relief under section 2241. Cook v. Wiley, 208 F.3d

1314, 1317 (11th Cir. 2000).



   1
    Kelley does not need a certificate of appealability to proceed in this appeal. See Sawyer v.
Holder, 326 F.3d 1363, 1364 n.3 (11th Cir. 2003) (concluding that a federal prisoner proceeding
under section 2241 does not need a certificate of appealability to appeal).
   2
      In Richardson, the Supreme Court concluded that “a jury in a federal criminal case brought
under [section] 848 must unanimously agree not only that the defendant committed some ‘continuing
series of violations’ but also that the defendant committed each of the individual ‘violations’
necessary to make up that ‘continuing series.’” 119 S.Ct. at 1709.

                                               2
      Although collateral attacks on the validity of a federal conviction or

sentence generally must be brought under section 2255, the savings clause of

section 2255 permits a federal prisoner to file a habeas petition pursuant to section

2241 in the following limited circumstance: if an otherwise available remedy

under section 2255 “is inadequate or ineffective to test the legality of his

detention.” 28 U.S.C. § 2255(e); Sawyer, 326 F.3d at 1365. The burden of

affirmatively showing the inadequacy or ineffectiveness of the section 2255

remedy rests with the prisoner. McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir.

1979).

      In Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999), we explained that the

savings clause applies when (1) the petitioner’s claim is based on a retroactively

applicable Supreme Court decision; (2) that decision establishes that the prisoner

was convicted of 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 [section] 2255 motion.” Id. at 1244. This showing is

significant because a prisoner does not “open the portal” to a section 2241

proceeding until he has demonstrated that the savings clause applies to him. See

id. n.3. “Once the savings clause . . . applies to open the portal to a [section] 2241



                                          3
proceeding, the proper inquiry . . . will be whether the petitioner can establish

actual innocence of the crime for which he has been convicted . . . .” Id.

       We conclude that the district court did not err in dismissing Kelley’s section

2241 petition. While Kelley met the first part of the Wofford test because

Richardson is retroactively applicable to cases on collateral review, see Ross v.

United States, 289 F.3d 677, 681 (11th Cir. 2002), we have determined that “a

Richardson claim is not the type of defect that opens the portal to a [section] 2241

proceeding,” Sawyer, 326 F.3d at 1366. In Sawyer, we explained that Richardson

did not render CCE offenses nonexistent because that case merely clarified the

standard by which a jury must find defendants guilty of those offenses. Id. Thus,

because Kelley did not meet the second part of the Wofford test, he did not show

that the savings clause applied to him. As such, Kelley failed to open the portal to

a section 2241 proceeding, and the district court did not need to inquire into

Kelley’s actual innocence claim. See Wofford, 177 F.3d at 1244 n.3 (actual

innocence claims are considered only after the portal to a section 2241 proceeding

has been opened).3

       AFFIRMED.

   3
      We decline to address arguments raised for the first time in Kelley’s reply brief. See United
States v. Levy, 416 F.3d 1273, 1275 (11th Cir. 2005) (noting that “issues not raised in a party’s
initial brief are deemed abandoned” on appeal).

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