                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-15326                ELEVENTH CIRCUIT
                                                             JUNE 3, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                    D. C. Docket No. 08-21687-CV-UU

HENRY LEE HUGHES,


                                                          Petitioner-Appellant,

                                  versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Walter McNeil, et al.,
U.S. ATTORNEY GENERAL,
of Mississippi and of Florida-Miami,
U.S. DISTRICT COURT,
of the Northern District of Mississippi,

                                                       Respondents-Appellees.

                       ________________________

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

                              (June 3, 2009)

Before BLACK, BARKETT and FAY, Circuit Judges.
PER CURIAM:

      Henry Lee Hughes, a federal prisoner proceeding pro se, appeals from the

district court’s dismissal of his habeas corpus petition, brought pursuant to 28

U.S.C. § 2241. For the reasons set forth below, we affirm.

                                                I.

      In June 2008, Hughes filed the instant pro se habeas corpus petition in the

Southern District of Florida, pursuant to 28 U.S.C. § 2241.1 In his petition, Hughes

challenged the calculation of his applicable guideline range and argued that the

court erred under 18 U.S.C. § 3553(a) by relying on impermissible factors, failing

to consider Sentencing Commission reports about the crack/powder cocaine

disparity, and imposing a sentence that was greater than necessary. Notably,

Hughes acknowledged that the Guidelines were mandatory at the time of sentencing

and that, although “said law was amended in 2005,” it “was not expressly made

retroactive.” Hughes also asserted that 28 U.S.C. § 2255 was an inadequate or

ineffective remedy because he was procedurally barred from bringing a second or

successive § 2255 motion and because any such motion would be untimely.



       1
           Though Hughes was convicted and sentenced in 1998 in the Northern District of
Mississippi – for conspiracy to possess with intent to distribute cocaine – he was serving that
sentence in the Southern District of Florida. See Fernandez v. United States, 941 F.2d 1488, 1495
(11th Cir. 1991) (“Section 2241 petitions may be brought only in the district court for the district
in which the inmate is incarcerated.”).

                                                2
        A magistrate judge issued a report, recommending that the district court

dismiss Hughes’s petition on the ground that “§ 2241 petitions may not be used to

avoid either the statute of limitations or the prohibitions against successive motions

to vacate as contained in the AEDPA.” Hughes objected to the magistrate’s report,

where he essentially repeated the arguments from his § 2241 petition. He clarified,

however, that his claim was based in part on Kimbrough v. United States, 552 U.S.

__, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). The district court overruled Hughes’s

objections, adopted the magistrate’s report, and dismissed Hughes’s petition

without prejudice.

                                           II.

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

this [C]ourt reviews de novo.” Sawyer v. Holder, 326 F.3d 1363, 1365 n.4 (11th

Cir. 2003). “Typically, a petitioner collaterally attacks the validity of his federal

sentence by filing a petition under 28 U.S.C. § 2255.” Id. at 1365. However,

“[u]nder the savings clause of § 2255, a prisoner may file a § 2241 petition if an

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

legality of his detention.” Id.; see 28 U.S.C. § 2255(e). We have held that a

petitioner may use the “savings clause” to “open the portal” to a § 2241 proceeding

when:



                                            3
       1) [his] 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 & n.3 (11th Cir. 1999).

                                          III.

      In this case, Hughes has not satisfied the Wofford criteria because his claim

is not based on a retroactively applicable Supreme Court decision. His attempt to

use Booker and its progeny in this regard is unavailing because, as Hughes himself

recognizes, Booker has not been made retroactive to cases on collateral review.

Varela v. United States, 400 F.3d 864, 868 (11th Cir. 2005). Moreover, nowhere in

the litigation has Hughes asserted that he was convicted of a nonexistent offense.

See Wofford, 177 F.3d at 1244. Finally, Wofford explicitly rejects Hughes’s

assertion that the statutory restrictions on filing successive motions to vacate render

§ 2255 an inadequate or ineffective remedy. Id. at 1237, 1245; accord Antonelli v.

Warden, U.S.P. Atlanta, 542 F.3d 1348, 1351 n.1 (11th Cir. 2008) (same); Darby v.

Hawk-Sawyer, 405 F.3d 942, 945 (11th Cir. 2005) (same). Thus, because Hughes

was not entitled to bring a § 2241 petition through the savings clause, we affirm.

      AFFIRMED.




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