FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCTOBER 1, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-11500

Non-Argument Calendar

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D. C. Docket No. 03-00457-CV-OC-10-GRJ

EUGENE A. FISCHER, 

Petitioner-Appellant, 

versus 

STAN YATES, 

Warden, 

Respondent-Appellee. 

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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:
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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.