[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 13, 2006
No. 06-12190 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00199-CV-2
ANGEL I. RAMIRO,
Petitioner-Appellant,
versus
WARDEN JOSE M. VASQUEZ,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(December 13, 2006)
Before BIRCH, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Angel I. Ramiro, a pro se federal prisoner, appeals the dismissal of his
petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. We
AFFIRM.
I. BACKGROUND
Ramiro was convicted in the Middle District of Florida in 1994 of
conspiring to distribute cocaine and attempting to possess marijuana with the intent
to distribute, both in violation of 21 U.S.C. § 846. The district judge sentenced
Ramiro to 236 months of imprisonment.1 Ramiro appealed, and we affirmed his
conviction and sentences. United States v. Ramiro, 65 F.3d 181 (11th Cir. 1995)
(table). Ramiro then filed a motion to vacate his sentence under 28 U.S.C. § 2255.
The government moved to dismiss his motion to vacate because it was both time-
barred and failed on the merits. The district judge dismissed Ramiro’s § 2255
motion with prejudice for the reasons stated in the government’s motion to dismiss.
Subsequently, Ramiro filed the § 2241 petition at issue in this appeal. The
government moved to dismiss his petition and contended that the petition should
fail because Ramiro could not satisfy the “savings clause” of § 2255, R1-6 at 5-7,
and that Ramiro’s claims, relying upon Blakely v. Washington, 542 U.S. 296, 124
S.Ct. 2531 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738
(2005), were not applicable retroactively to cases on collateral review, id. at 7.
1
Ramiro is incarcerated at the Federal Correctional Institution in Jesup, Georgia.
2
Ramiro filed a traverse to the government’s motion to dismiss and reiterated the
arguments made in his § 2241 petition. Ramiro also asserted that a number of
factors out of his control caused him to file his prior § 2255 late and, therefore, had
rendered § 2255 relief inadequate. Additionally, Ramiro contended that he was
innocent of the crime for which he was convicted and that his arguments did not
raise retroactivity concerns.
A magistrate judge issued a Report and Recommendation (“R&R”) that
recommended dismissing the § 2241 petition because Ramiro could not satisfy the
savings clause of § 2255. The magistrate judge noted that, in Wofford v. Scott,
177 F.3d 1236, 1244 (11th Cir. 1999), our court held that, to satisfy the savings
clause of § 2255, a petitioner must present evidence that his claims are based upon
a retroactively applicable Supreme Court decision and that circuit law foreclosed
his claim from being brought at the time that it otherwise should have been raised.
R1-8 at 3-4. The magistrate judge concluded that Ramiro had not presented such
evidence. Therefore, the magistrate judge found that none of Ramiro’s claims
satisfied the savings clause of § 2255 and could not be filed properly in a § 2241
petition.
Ramiro filed objections to the magistrate judge’s recommendation and
reiterated his previous arguments, including his contention that the Antiterrorism
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and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244, violates the
United States Constitution by suspending habeas corpus if it forecloses his petition.
Ramiro also claimed that the district judge could determine whether Booker and
Blakely applied retroactively.
The district judge adopted the magistrate judge’s R&R and dismissed
Ramiro’s § 2241 petition. Ramiro filed a motion for reconsideration and stated his
prior arguments with the contention that the district judge erred by dismissing his
petition without addressing the arguments that he had made in his petition. Ramiro
then filed a second motion for reconsideration, which the district judge also denied.
Ramiro has appealed the dismissal of his pro se § 2241 petition.
II. DISCUSSION
On appeal, Ramiro raises a number of arguments challenging his conviction.
First, Ramiro argues that the district judge made Booker errors by sentencing him
based on conduct that was not in the indictment and found by a jury. Second,
Ramiro contends that his attorney failed to provide him with the transcripts he
needed to file a valid § 2255 motion. Third, Ramiro claims that he was “convicted
and sentenced for a nonexistent offense [because] there was no cocaine involved
on Ramiro's case.” Petitioner's Br. at 10. Fourth, Ramiro asserts that the savings
clause of § 2255 applies to him because he has not had an opportunity to be heard
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regarding his allegations that the district judge erred in his criminal trial. Finally,
Ramiro argues that he is actually innocent and, therefore, we should allow this
petition to avoid a miscarriage of justice.
The government argues that Ramiro was ineligible to file a § 2241 petition
because he has not met the requirements for invoking the savings clause of § 2255.
Specifically, the government contends that Ramiro’s petition fails under Wofford
because he does not identify a retroactively applicable Supreme Court decision de-
criminalizing his conduct. Ramiro replies that his showing of actual innocence
satisfies the savings clause of § 2255 and “entitles him to pass through the
gateway portal.” Petitioner's Reply Br. at 1. Ramiro also argues that his case falls
outside of the case law for “'second or successive'” motions to vacate because he
has shown “'cause'” for his original procedural default in his § 2255 motion. Id. at
2. Finally, Ramiro contends that the Supreme Court’s holding in House v. Bell, __
U.S.__, 126 S.Ct. 2064 (2006), permits a defendant who shows actual innocence to
bring a § 2241 action.
As a preliminary matter, Ramiro may proceed before our court despite the
lack of a certificate of appealability (“COA”). Under 28 U.S.C. § 2253(c)(1)(B), a
federal prisoner must obtain a COA to appeal only when proceeding under § 2255.
By negative implication, a federal prisoner who proceeds under § 2241 does not
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need a COA to appeal. 28 U.S.C. § 2253(c); Sawyer v. Holder, 326 F.3d 1363,
1364 n.3 (11th Cir. 2003).
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).
Generally, collateral attacks on the validity of a federal conviction or sentence
must be brought under § 2255. Sawyer, 326 F.3d at 1365. Under limited
circumstances, a provision of § 2255 permits a federal prisoner to file a habeas
petition pursuant to § 2241. 28 U.S.C. §§ 2241(a), 2255. That provision, known
as the “savings clause,” provides that
[a]n application for 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
that the remedy provided for under § 2255 is inadequate or ineffective. 28 U.S.C.
§ 2255. “The burden of coming forward with evidence affirmatively showing the
inadequacy or ineffectiveness of the § 2255 remedy rests with the petitioner.”
McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979) (per curiam).
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When a prisoner previously has filed a § 2255 motion to vacate, he must
apply for and receive permission from our court before filing a successive § 2255
motion. 28 U.S.C. §§ 2244(b)(3)(A), 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. Wofford, 177 F.3d at
1244-45 & n. 3. Consequently, a petitioner who has filed a previous § 2255
motion that has been denied may not circumvent the successive-motion rule of
AEDPA simply by filing a petition under § 2241. Id. We have established that the
savings clause applies only when (1) the petitioner’s “claim is based on a
retroactively applicable Supreme Court decision; (2) the holding of that Supreme
Court decision establishes that 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. at 1244. For a prisoner to avail himself of the § 2241 remedy under
Wofford, all three criteria must be satisfied, which occurs only in the narrowest of
circumstances. Id.
A petitioner may not argue the merits of his claim until he has “open[ed] the
portal” to a § 2241 proceeding by demonstrating that the savings clause applies to
his claim. Id. at 1244 n. 3. Only if a petitioner successfully “opens the portal” will
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we take the next step and determine if the petitioner can overcome a procedural
default by showing “'actual innocence.'” Id.
Ramiro is precluded from seeking relief under § 2241 because the savings
clause of § 2255 does not apply. He cannot meet the initial prong of the test in
Wofford because he has not demonstrated that his claim is based on a retroactively
applicable Supreme Court decision. Ramiro’s arguments seem to rely on Apprendi
v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), Blakely, and Booker, but we
have held that these Supreme Court decisions do not apply retroactively to cases on
collateral review. McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001)
(addressing Apprendi); Varela v. United States, 400 F.3d 864, 867-68 (11th Cir.)
(per curiam), cert. denied, __ U.S. __, 126 S.Ct. 312 (2005) (addressing Blakely
and Booker). Ramiro’s claim that he was convicted of a nonexistent offense,
presumably addressing the second prong of the savings clause of § 2255, is
ineffective because he cannot satisfy the first prong of the test. Wofford, 177 F.3d
at 1244 (requiring the prisoner to satisfy all three prongs). Therefore, Ramiro’s
petition does not satisfy the Wofford test, and he may not use the savings clause of
§ 2255 to file a § 2241 petition.
Additionally, House does not support Ramiro’s position. House restates the
well established rule that actual innocence may overcome a procedural default.
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House, __ U.S. at __, 126 S.Ct. at 2076-77. Nonetheless, we will not address the
question of whether Ramiro has overcome his procedural default until Ramiro has
established that the savings clause of § 2255 applies to him and, therefore, that he
can validly bring his § 2241 petition. Wofford, 177 F.3d at 1244 n. 3.
Consequently, we need not rule on Ramiro’s claims regarding his actual innocence,
the impediments that prevented him from meeting the procedural requirements of
§ 2255, and the alleged Booker errors that were committed at his trial. Because
Ramiro has failed to show that the savings clause of § 2255 applies to enable him
to file his § 2241 petition, the district judge did not err by dismissing Ramiro’s
§ 2241 petition.
III. CONCLUSION
Ramiro bases his appellate challenge to his federal conviction for drug-
trafficking crimes on his argument that the savings clause of § 2255 applies to
permit him to file his § 2241 petition. Because we have concluded that Ramiro’s
petition does not satisfy the Wofford test, he may not use the savings clause of
§ 2255 to file a § 2241 petition. Accordingly, the district judge's dismissing
Ramiro’s § 2241 petition is AFFIRMED.
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