[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 30, 2005
No. 05-10115 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00328-CV-3-RV-MD
WILLIE BRAZILE,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(November 30, 2005)
Before BARKETT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Willie Brazile, a federal prisoner proceeding pro se, appeals the district
court’s denial of his petition for writ of habeas corpus, 28 U.S.C. § 2241, for
failure to demonstrate entitlement to proceed under the savings clause of 28 U.S.C.
§ 2255. Brazile argues on appeal that he properly filed his petition pursuant to
§ 2241, and the district court erred by denying his petition on the grounds that §
2255’s savings clause did not apply, instead of addressing the merits of his claims.
The availability of habeas relief under § 2241 presents a question of law that
we review de novo. Cook v. Wiley, 208 F.3d 1314, 1317 (11th Cir. 2000).
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 (11th Cir. 2003).
However, under limited circumstances, a provision of § 2255 permits a federal
prisoner to file a habeas petition pursuant to 28 U.S.C. § 2241. See 28 U.S.C.
§§ 2241(a), 2255. That provision, known as § 2255’s “savings clause,” provides
that
[a]n application for a writ of habeas corpus in behalf of a
prisoner who is authorized to apply for relief by motion pursuant to
this section, shall not be entertained if it appears that the applicant has
failed to apply for relief, by motion, to the court which sentenced him,
or that such court has denied him relief, unless it also appears that the
remedy by motion is inadequate or ineffective to test the legality of
his detention.
28 U.S.C. § 2255. Accordingly, a court may entertain a § 2241 petition attacking
custody resulting from a federally imposed sentence if the petitioner establishes
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that the remedy provided for under § 2255 is inadequate or ineffective. See id.
The burden of coming forward with evidence affirmatively showing the
inadequacy or ineffectiveness of the § 2255 remedy rests with the movant.
McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979).1
When a prisoner has previously filed a § 2255 motion to vacate, he must
apply for and receive our authorization before filing a successive § 2255 motion.
28 U.S.C. §§ 2244(b)(3), 2255. We have held that such restrictions on successive
§ 2255 motions, “standing alone, do not render that section ‘inadequate or
ineffective’ within the meaning of the savings clause.” Darby v. Hawk-Sawyer,
405 F.3d 942, 945 (11th Cir. 2005). Consequently, a petitioner who has filed a
previous § 2255 motion, which has been denied, may not circumvent the
successive-motion rule simply by filing a petition under § 2241. Id. We have
established that § 2255’s savings clause only applies when (1) the petitioner’s
claim is based on a retroactively applicable Supreme Court decision; (2) the
holding of that decision established that the petitioner was convicted of a
“nonexistent 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
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.
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§ 2255 motion.” Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999). In order
for a prisoner to avail himself of the § 2241 remedy under Wofford, all three
criteria must be satisfied. A petitioner may not argue the merits of his claim until
he has “open[ed] the portal” to a § 2241 proceeding by demonstrating that § 2255’s
savings clause applies to his claim. Id. at 1244 n.3.
Brazile is precluded from seeking relief under § 2241 because § 2255’s
savings clause does not apply. First, it appears that Brazile filed the present § 2241
petition in an effort to circumvent the rules limiting the scope of successive § 2255
motions. Second, Brazile cannot meet the initial prong of the test in Wofford
because he has not demonstrated that his claims are based on any retroactively
applicable Supreme Court decision, and, thus, we need not address the remaining
prongs.
AFFIRMED.
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