[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 1, 2007
No. 07-11500 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00457-CV-OC-10-GRJ
EUGENE A. FISCHER,
Petitioner-Appellant,
versus
STAN YATES,
Warden,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 1, 2007)
Before BIRCH, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:
Eugene Fischer, a federal prisoner, appeals the dismissal of his petition for a
writ of habeas corpus. Fischer challenges his conviction and sentence for
participating in a continuing criminal enterprise (“CCE”). See 21 U.S.C. § 848.
He argues that his conviction was contrary to the decision of the Supreme Court in
Richardson v. United States, 526 U.S. 813, 119 S. Ct. 1707 (1999), and newly
discovered evidence establishes his actual innocence. Fischer contends that he is
entitled to habeas relief under section 2241 based on the savings clause of section
2255. 28 U.S.C. §§ 2241, 2255. Because the district court correctly concluded
that the savings clause of section 2255 does not apply to Fischer’s petition, we
affirm.
The availability of habeas corpus relief under section 2241 is a question of
law we review de novo. Darby v. Hawk-Sawyer, 405 F.3d 942, 944 (11th Cir.
2005). Under the “‘savings clause’ of [section] 2255 . . . a prisoner [may] file a
[section] 2241 petition only if an otherwise available remedy under [section] 2255
is ‘inadequate or ineffective’ to test the legality of his detention.” Id. at 945. We
have held that the savings clause applies to a claim only when “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
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it otherwise should have been raised in the petitioner’s trial, appeal, or first
[section] 2255 motion.” Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999).
If a prisoner qualifies for the savings clause, the proper inquiry is whether the
petitioner can establish actual innocence. Id. at 1244 n.3.
The only Wofford requirement at issue is whether Fischer was convicted for
a nonexistent offense. Fischer argues that, because Richardson changed the
elements of his offense, he was convicted of a nonexistent offense. We disagree.
Fischer’s argument is foreclosed by our decision in Sawyer v. Holder, 326
F.3d 1363 (11th Cir. 2003). We expressly held in Sawyer that “a Richardson claim
is not the type of defect that opens the portal to a [section] 2241 proceeding.” Id.
at 1366. We explained that “[t]he conduct necessary to [establish] a CCE offense is
the same post-Richardson.” Id. “Richardson clarified the standard by which a jury
must find a defendant guilty of a CCE offense, but it did not invalidate CCE
offenses.” Id. Although Fischer correctly observes that his appeal differs from
Sawyer because, unlike the defendant in Sawyer, Fischer did not have any
substantive convictions that provided assurance that the jurors unanimously agreed
on the specific violations underlying his CCE conviction, our statement in Sawyer
that Richardson claims do not open the portal to section 2241 proceedings was
unqualified. The district court correctly dismissed Fischer’s petition.
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Fischer’s argument that his claim of actual innocence should open the
gateway to a section 2241 petition is also unavailing. In Wofford, we explained
that a claim of actual innocence claims is considered after the portal to a section
2241 proceeding is opened. 177 F.3d at 1244 n.3. A claim of actual innocence is
not an exception to the requirement that a petitioner first qualify under Wofford for
the savings clause.
The denial of Fischer’s petition is
AFFIRMED.
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