[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 28, 2012
No. 11-14020
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 2:11-cv-00059-LGW-JEG
CHARLES DANIEL MAYE,
llllllllllllllllllllllllllllllllllllllll Petitioner-Appellant,
versus
WARDEN,
llllllllllllllllllllllllllllllllllllllll Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(February 28, 2012)
Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
In 2006, a jury found Petitioner guilty of conspiring, in violation of 18
U.S.C. § 371, to access a computer without authorization, in violation of 18 U.S.C.
§ 1030; accessing a computer without authorization in violation of § 1030; and
making false statements, in violation of 18 U.S.C. § 1001, and the district court
sentenced him to prison for a total of 97 months. Petitioner appealed his
convictions and sentences, but withdrew the appeal. On three occasions thereafter
he attempted, but failed, to gain relief from his convictions under 28 U.S.C. §
2255. After that, he attempted to gain such relief via a petition for a writ of
habeas corpus filed pursuant to 28 U.S.C. § 2241. In his petition, he claimed that
he is innocent of the crimes of which he was convicted—because of this court’s
decisions in United States v. Salum, 257 F. App’x 225 (11th Cir. 2007), and United
States v. Rodriguez, 628 F,3d 1258 (11th Cir. 2010)—and that he was entitled to
use § 2255's “savings clause” to proceed under § 2241.
The district court referred the petition to a magistrate judge for a report and
recommendation. The magistrate judge recommended that the district court deny
the petition on the ground that Petitioner had not demonstrated eligibility for
invoking the savings clause; specifically, he had not cited a retroactively
applicable Supreme Court decision supporting his claim. Record, Vol. 1, Tab 9 at
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3. Petitioner objected to the magistrate’s recommendation on the ground that our
decision in Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999), authorized his
invocation of the savings clause. The district court overruled his objection and,
adopting the magistrate judge’s recommendation, denied relief. Record, Vol. 2,
Tab 14 at 2. Petitioner moved the court to reconsider, and the court denied his
motion. Id. Tab 19 at 2. Proceeding pro se, Petitioner now appeals the district
court’s ruling.
Ordinarily, a federal prisoner must bring any collateral attack on his
conviction or sentence under 28 U.S.C § 2255. Sawyer v. Holder, 326 F.3d 1363,
1365 (11th Cir. 2003). However, under limited circumstances set forth in
§ 2255(e)’s savings clause, a federal prisoner may instead file a habeas petition
under § 2241. See 28 U.S.C. §§ 2241(a), 2255(e). This savings clause provides
that relief under § 2241 is only available if the prisoner affirmatively shows that a
§ 2255 proceeding is “inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255(e); McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir.
1979).
Where, as here, a prisoner has previously filed an unsuccessful § 2255
motion to vacate his conviction, he generally may not file a second or successive
motion unless and until we grant him authorization. 28 U.S.C. § 2255(h); United
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States v. Diaz-Clark, 292 F.3d 1310, 1316 (11th Cir. 2002). This restriction,
standing alone, cannot render § 2255’s remedy inadequate or ineffective under the
savings clause in § 2255(e). Gilbert v. United States, 640 F.3d 1293, 1308 (11th
Cir. 2011) (en banc), cert. denied, (U.S. Jan. 9, 2012) (No. 11-6053).
Rather, a prisoner meets this burden only where he shows that: (1) his
current claim is based on a retroactively applicable Supreme Court decision;
(2) the holding of that decision established that 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 at the prisoner’s trial, appeal, or first
§ 2255 motion. Wofford, 177 F.3d at 1244; but see Gilbert, 640 F.3d at 1319
(clarifying that the Wofford test was dicta). A prisoner must satisfy all three
prongs of this test before we will consider the merits of his claim. Wofford, 177
F.3d at 1244 n.3.
Here, Petitioner failed to establish that the savings clause applies, in that he
did not identify a relevant retroactively Supreme Court decision or show that this
circuit’s law squarely foreclosed his claim. Furthermore, he cannot use
§ 2255(e)’s savings clause merely to avoid the successive motion ban of
§ 2255(h).
The district court’s decision is, accordingly,
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AFFIRMED.
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