                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                      FILED
                         ________________________           U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                  June 28, 2007
                                No. 06-15680                   THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                  D. C. Docket No. 06-00292-CV-OC-10-GRJ

DAVID CORREA,



                                                              Petitioner-Appellant,

                                     versus

WARDEN, FCC COLEMAN - USP-1,

                                                            Respondent-Appellee.


                          ________________________

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

                                 (June 28, 2007)

Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

     David Correa, a federal prisoner proceeding pro se, appeals the district
court’s dismissal of his petition for habeas relief, brought pursuant to 28 U.S.C.

§ 2241. After a thorough review of the record, we affirm.

        Correa, a federal prisoner serving a term of life imprisonment following his

convictions for various drug-related offenses, filed a pro se petition for habeas

relief pursuant to § 2241 and 18 U.S.C. § 4001(a),1 challenging his convictions and

sentences as unconstitutional under United States v. Booker, 543 U.S. 220, 125

S.Ct. 738, 160 L.Ed.2d 621 (2005), United States v. Cotton, 535 U.S. 625, 122

S.Ct. 1782, 152 L.Ed.2d 860 (2002), and Apprendi v. New Jersey, 530 U.S. 466,

120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He further claimed that he was actually

innocent of the offenses for which he was convicted. In his petition, he admitted

that he had filed a direct appeal and a motion to vacate under 28 U.S.C. § 2255, as

well as a second and successive motion to vacate.

        The district court dismissed the petition on the grounds that Correa was

challenging the legality of his confinement, but had not shown that § 2255 was

inadequate or ineffective under Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999).

The court noted that Apprendi and Booker were not retroactively applicable to

        1
          That statute provides, “[n]o citizen shall be imprisoned or otherwise detained by the United
States except pursuant to an Act of Congress.” 18 U.S.C. § 4001(a). Correa misunderstands the
applicability of this statute, as “the statutory creation of the federal courts is sufficient to meet the
requirements” of the Act. See Armstrong v. Guccione, 470 F.3d 89, 105 (2d Cir. 2006), petition for
cert. filed, (No. 06-1278) (Mar. 19, 2007). Moreover, this statute typically applies to war-time
detentions. See Hamdi v. Rumsfeld, 542 U.S. 507, 542-551, 124 S.Ct. 2633 2654-2659, 159
L.Ed.2d 578 (2004) (Souter, J. concurring).

                                                   2
cases on collateral review, and that Correa’s claims of actual innocence amounted

to legal insufficiency rather than the required factual innocence. Correa now

appeals, explaining that he is challenging the authority of the Bureau of Prisons to

continue to detain him, which is a challenge to the execution of his sentences that

is properly brought under § 2241.

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

we review de novo.2 Sawyer v. Holder, 326 F.3d 1363, 1364 n.4 (11th Cir. 2003).

       Despite Correa’s attempts to characterize his challenge as related to the

execution of his sentences, Correa actually challenges the constitutionality of his

convictions and sentences, which are claims properly brought in a § 2255 motion

to vacate. United States v. Jordan, 915 F.2d 622, 629 (11th Cir. 1990). The

“savings clause” in § 2255, however, permits a prisoner to file a § 2241 petition if

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

legality of his detention. 28 U.S.C. § 2255. This court in Wofford established a

three-prong test to determine the applicability of the savings clause to permit a

federal prisoner to file a § 2241 petition attacking his conviction or sentence. The

petitioner must show (1) that his claim is based on a retroactively applicable U.S.


       2
         Correa filed his petition after the effective date of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-32, 110 Stat. 1214 (1996), and, therefore, the
provisions of that act govern this appeal. Correa is not required to obtain a Certificate of
Appealability to appeal the dismissal of a § 2241 petition. Sawyer, 326 F.3d at 1364 n.3.

                                                 3
Supreme Court decision; (2) the holding of that decision establishes that the

petitioner was convicted of a non-existent offense; and (3) circuit law squarely

foreclosed such a claim at the time it otherwise should have been raised at the

petitioner’s trial, appeal, or first § 2255 motion. Wofford, 177 F.3d at 1244; see

also Sawyer, 326 F.3d at 1365.

      When a prisoner previously has filed a § 2255 motion to vacate, he must

apply for and receive permission from the circuit court prior to filing a successive

§ 2255 motion. 28 U.S.C. §§ 2255, 2244(b)(3); In re Blackshire, 98 F.3d 1293,

1293 (11th Cir. 1996). A petitioner who has filed and been denied a previous

§ 2255 motion may not circumvent the successive-petition rule simply by filing

another petition under § 2241. Wofford, 177 F.3d at 1245.

      Here, Correa cannot show that § 2255 was inadequate or ineffective, as he

failed to identify any retroactively applicable Supreme Court decision, that he was

convicted of a non-existent offense, or that he could not have brought his claim

earlier. See Wofford, 177 F.3d at 1244. Notably, this court has held that Apprendi

and Booker are not retroactively applicable to cases of collateral review. See

Varela v. United States, 400 F.3d 864, 868 (11th Cir.), cert. denied, 126 S.Ct. 312

(2005). Moreover, Correa filed a previous § 2255 motion and a motion to file a

second and successive motion to vacate, which were denied, and he cannot use



                                          4
§ 2241 as a means to circumvent the limits on successive applications or to show

that § 2255 is inadequate or ineffective.

      Finally, to the extent Correa argues that he was actually innocent of the

offenses, his claims amount to legal insufficiency rather than factual innocence,

and therefore, do not establish that he was actually innocent. Johnson v. Alabama,

256 F.3d 1156, 1171 (11th Cir. 2001), cert. denied, 535 U.S. 926 (2002); Sawyer v.

Holder, 326 F.3d 1363, 1367 (11th Cir. 2002).

      For the foregoing reasons, we AFFIRM.




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