[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-12042 ELEVENTH CIRCUIT
MAY 11, 2012
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 2:10-cv-00173-LGW-JEG
JAMES HENRY GRESHAM,
Petitioner-Appellant,
versus
WARDEN TRUSTEE ANTHONY HAYNES,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondents-Appellees.
_________________________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________________________
(May 11, 2012)
Before EDMONDSON, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
James H. Gresham, a federal prisoner, appeals the district court’s dismissal
of his pro se 28 U.S.C. § 2241 habeas corpus petition.1 No reversible error has
been shown; we affirm.
Gresham was convicted of drug trafficking offenses in 1993 and was
sentenced to 360 months’ imprisonment.2 We affirmed his conviction on direct
appeal. In 1998, Gresham filed a motion to vacate his sentence pursuant to 28
U.S.C. § 2255; and that motion was denied as time-barred. Gresham has since
filed several other post-conviction motions, including at least two applications for
leave to file a second or successive section 2255 motion, all of which have been
denied.
In the instant section 2241 petition -- filed in 2010 -- Gresham raised these
three claims: (1) his sentence enhancement for obstruction of justice violated the
United States Constitution’s Due Process and Bill of Attainder Clauses; (2) his
sentence enhancement for possessing a firearm in relation to a drug trafficking
offense violated the Double Jeopardy Clause; and (3) his sentence was based on an
improper post-trial drug quantity calculation. The district court determined that
1
Gresham does not need a certificate of appealability to proceed in this appeal. See
Sawyer v. Holder, 326 F.3d 1363, 1364 n.3 (11th Cir. 2003) (concluding that a federal prisoner
proceeding under section 2241 does not need a certificate of appealability to appeal).
2
Gresham’s sentence was later reduced to 336 months’ imprisonment, pursuant to 18
U.S.C. § 3582(c)(2).
2
Gresham did not meet the requirements of section 2255’s savings clause and
dismissed his habeas petition.
The availability of habeas relief under section 2241 is a question of law that
we review de novo. Sawyer, 326 F.3d at 1365 n.4. As a general rule, collateral
attacks on the validity of a federal sentence must be brought under section 2255.
Id. at 1365. But 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(e). The burden is on the movant to present evidence affirmatively showing
the inadequacy or ineffectiveness of the section 2255 remedy. McGhee v.
Hanberry, 604 F.2d 9, 10 (5th Cir. 1979).
In Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999), we explained that
section 2255 remedies may be considered inadequate -- and, thus, the savings
clause applies -- when (1) the petitioner’s 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
in the petitioner’s trial, appeal, or first [section] 2255 motion.” Id. at 1244. The
savings clause only applies if the prisoner has satisfied all three elements. See id.
3
In this case, Gresham has not satisfied the first element of the Wofford
analysis because his claim is not based on a retroactively applicable Supreme
Court decision.3 Gresham concedes that his petition was not based on such a
Supreme Court case. And to the extent that Gresham’s petition can be construed
as relying on the Supreme Court’s decisions in Apprendi v. New Jersey, 120 S.Ct.
2348 (2000), Blakely v. Washington, 124 S.Ct. 2531 (2004), or United States v.
Booker, 125 S.Ct. 738 (2005), we have concluded that these cases do not apply
retroactively on collateral review. See Varela v. United States, 400 F.3d 864, 867-
68 (11th Cir. 2005) (addressing Blakely and Booker); McCoy v. United States,
266 F.3d 1245, 1258 (11th Cir. 2001) (addressing Apprendi).
We also reject Gresham’s contention that he should be permitted to proceed
under section 2241 because he is barred from pursuing his claims in a second or
successive section 2255 motion. See Wofford, 177 F.3d at 1245 (concluding that
the restrictions on filing second or successive section 2255 motions, standing
alone, do not render section 2255 “inadequate or ineffective” within the meaning
of the savings clause).
3
Because Gresham fails to satisfy the first of Wofford’s three requirements, we need not
address the other two requirements.
4
Because Gresham’s section 2241 petition did not satisfy the requirements of
section 2255’s savings clause, the district court properly dismissed the petition.
AFFIRMED.
5