[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUL 06, 2006
No. 06-11018 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00033-CV-OC-10GRJ
ROBERT CLARENCE POTTS, III,
Petitioner-Appellant,
versus
WARDEN, FCC Coleman - USP,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 6, 2006)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Federal prisoner Robert Clarence Potts, III, appeals the district court’s
dismissal of his petition for writ of habeas corpus filed pursuant to 28 U.S.C.
§ 2241. Potts claims his constitutional rights were violated because he was
sentenced for drug quantities neither charged in the indictment nor proven to a jury
beyond a reasonable doubt, in violation of Apprendi v. New Jersey, 120 S. Ct. 2348
(2000), Blakely v. Washington, 124 S. Ct. 2531 (2004), and United States v.
Booker, 125 S. Ct. 738 (2005). Potts also claims he is actually innocent of the
offense. We affirm the district court’s denial of Potts’ petition.
“We review de novo the district court’s denial of habeas relief under
§ 2241.” Skinner v. Wiley, 355 F.3d 1293, 1294 (11th Cir. 2004). Typically,
collateral attacks on the validity of a federal conviction or sentence are brought
under 28 U.S.C. § 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 § 2241. Id. That provision, known as
the “savings clause,” provides:
An 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.
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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 the
remedy provided for under § 2255 is inadequate or ineffective. Sawyer, 326 F.3d
at 1365. The 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 establishes the prisoner was convicted of 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 (11th Cir. 1999). We have held the constitutional
rules announced in Apprendi, Blakely, and Booker do not apply retroactively on
collateral review. Varela v. United States, 400 F.3d 864, 867-68 (11th Cir.), cert.
denied, 126 S. Ct. 312 (2005); McCoy v. United States, 266 F.3d 1245, 1258 (11th
Cir. 2001).
Potts is challenging the validity of his sentence, which should have been
raised in a § 2255 motion, yet he admits he never filed one. The district court did
not err in denying Potts’ § 2241 petition because the savings clause does not apply
to his claim. He cannot meet the initial prong of the savings clause test in Wofford
because his claim is based on Supreme Court decisions that we have expressly held
are not retroactively applicable on collateral review.
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Potts’ contention that Apprendi should have been applied retroactively to his
case because he raised an Apprendi-based claim in his first petition for writ of
certiorari lacks merit because he did not raise his Apprendi claim on direct appeal.
We do not examine the other prongs of the Wofford test because Potts must meet
all three in order to proceed. Additionally, we do not examine Potts’ actual
innocence claim because a petitioner may not assert actual innocence until he has
“open[ed] the portal” to a § 2241 proceeding by demonstrating that § 2255’s
savings clause applies to his claim. See Wofford, 177 F.3d at 1244 n.3.
AFFIRMED.
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