[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
------------------------------------------- ELEVENTH CIRCUIT
DEC 14, 2006
No. 05-16758
THOMAS K. KAHN
Non-Argument Calendar
CLERK
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D.C. Docket No. 05-00034-CV-2
OTIS PARIS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
JOSE VASQUEZ,
Warden, FCI Jesup,
Respondents-Appellees.
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Appeal from the United States District Court
for the Southern District of Georgia
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(December 14, 2006)
Before EDMONDSON, Chief Judge, ANDERSON and BIRCH, Circuit Judges.
PER CURIAM:
Petitioner-Appellant Otis Paris, proceeding pro se, appeals the dismissal of
his habeas corpus petition filed pursuant to 28 U.S.C. §2241 and the denial of his
motion for reconsideration. No reversible error has been shown; we affirm.
Appellant was convicted of drug trafficking offenses in the Eastern District
of Michigan in 1996; he was sentenced to 210 months’ imprisonment. Appellant’s
conviction and sentence were affirmed on direct appeal by the Sixth Circuit. In
1999, Appellant sought relief pursuant to 28 U.S.C. § 2255. Section 2255 relief
was denied in the Michigan district court; Appellant was denied a certificate of
appealability. In 2003, the Sixth Circuit denied Appellant permission to file a
successive section 2255 motion.
In 2005, Appellant, then incarcerated in federal prison in Georgia, filed a 28
U.S.C. §2241 motion claiming, among other things, that his sentence was
unconstitutionally imposed in violation of the principles recognized by the
Supreme Court in United States v. Booker, 125 S.Ct. 738 (2005). Concluding that
Appellant failed to satisfy the requirements of the savings clause of section 2255,
the magistrate judge issued a report and recommendation determining that
Appellant’s section 2241 motion was due to be dismissed. The district court also
concluded that Appellant failed to satisfy the savings clause of section 2255,
adopted the report and recommendation, and dismissed Appellant’s section 2241
2
petition. Appellant filed a motion for reconsideration in which he also argued that
“extraordinary and compelling” reasons warranted the filing of a motion to reduce
sentence by the Bureau of Prisons pursuant to 18 U.S.C. §3582(c)(1)(A)(i).1
Reconsideration was denied.
We review the availability of habeas relief under section 2241 de novo, see
Cook v. Wiley, 208 F.3d 1314, 1317 (11th Cir. 2000); we review a district court’s
denial of a motion for reconsideration under an abuse of discretion standard.
Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003). As a general rule, a
federal prisoner collaterally attacks the validity of his sentence by filing a petition
under 28 U.S.C. §2255. See 28 U.S.C. §2255; Sawyer v. Holder, 326 F.3d 1363,
1365 (11th Cir. 2003). The savings clause of section 2255 allows a prisoner to file
a section 2241 habeas petition if an otherwise available remedy under section
2255 “is inadequate or ineffective to test the legality of his detention.” 28 U.S.C.
§2255 ¶5. According to Appellant, section 2241 relief is available to him because
remedy under section 2255 is otherwise inadequate to address his Booker claim.
In Wofford v. Scott, 177 F.3d 1236 1244 (11th Cir. 1999), we set out when
section 2255 remedies may be considered inadequate. As we stated in Wofford,
1
18 U.S.C. §3582(c)(1)(A)(i) authorizes the district court, upon motion of the Director of the
Bureau of Prisons, to reduce a term of imprisonment if, after considering the factors set out in 18
U.S.C. §3553(a), the court finds “extraordinary and compelling reasons” warrant the reduction.
3
the savings clause of section 2255 applies to open a portal for a claim to proceed
pursuant to section 2241 only under certain conditions:
1) that 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.
Id.
Although Appellant sources his claim of unconstitutional detention on the
line of Supreme Court cases that culminated in Booker , we have held that
Booker’s constitutional rule is a new rule of criminal procedure that has no
retroactive application to section 2255 cases on collateral review. Varela v.
United States, 400 F.3d 864, 868 (11th Cir. 2005). Because Appellant fails to
identify a Supreme Court decision that is retroactively applicable to cases on
collateral review,2 Appellant’s section 2241 habeas petition was due to be
dismissed.3
AFFIRMED.
2
Because Appellant fails to satisfy the first of Wofford’s three requirements, we need not address
satisfaction of the other two requirements.
3
The motion for reconsideration also is predicated on a retroactive application of Booker; the
district court committed no abuse of discretion when it denied that motion.
4