FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Dec. 09, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-12649

Non-Argument Calendar

________________________

D. C. Docket No. 08-03699-CV-CAM-1

JOHN G. WESTINE,

Petitioner-Appellant,

versus

WILLIE SCOTT,

Warden,

Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(December 9, 2009)

Before DUBINA, Chief Judge, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
Appellant John G. Westine, a federal prisoner proceeding pro se, appeals

from the district court’s order dismissing his habeas corpus petition, brought

pursuant to 28 U.S.C. § 2241. The district court for the Northern District of

Georgia dismissed the § 2241 petition for lack of jurisdiction because Westine did

not file it in the judicial district where he was incarcerated. On appeal, Westine

does not address the district court’s order, but rather contends that he properly

brought this action pursuant to § 2241 because he satisfied the criteria necessary to

proceed under the savings clause of 28 U.S.C. § 2255.

1

“The availability of habeas relief under § 2241 presents a question of law

that this [C]ourt reviews de novo.” Sawyer v. Holder, 326 F.3d 1363, 1365 n.4

(11th Cir. 2003). “Typically, a petitioner collaterally attacks the validity of his

federal sentence by filing a petition under 28 U.S.C. § 2255.” Id. at 1365.

However, “[u]nder the savings clause of § 2255, a prisoner may file a § 2241

petition if an otherwise available remedy under § 2255 is inadequate or ineffective

to test the legality of his detention.” Id.; 28 U.S.C. § 2255(e). We have held that a

petitioner may use the “savings clause” to “open the portal” to a § 2241 proceeding

when:

 Because Westine seeks to proceed under § 2241, not § 2255, he is not required to 1

obtain a certificate of appealability before filing this appeal. See Sawyer v. Holder, 326 F.3d

1363, 1364 n.3 (11th Cir. 2003).

2
1) [his] 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 it otherwise should have

been raised in the petitioner’s trial, appeal, or first § 2255 motion.

Wofford v. Scott, 177 F.3d 1236, 1244 & n.3 (11th Cir. 1999).

In this case, we conclude from the record that the district court correctly

determined that Westine was required to file his § 2241 petition in the judicial

district where he was incarcerated. See Rumsfeld v. Padilla, 542 U.S. 426, 447,

124 S. Ct. 2711, 2724-25, 159 L. Ed. 2d 513 (2004); Fernandez v. United States,

941 F.2d 1488, 1495 (11th Cir. 1991). Because it is undisputed that Westine was

not incarcerated in the Northern District of Georgia, we conclude that the district

court lacked jurisdiction to entertain his § 2241 petition. See Hajduk v. United

States, 764 F.2d 795, 796 (11th Cir. 1985). Accordingly, we affirm the judgment

of dismissal and do not address whether Westine could proceed under the savings

clause.

AFFIRMED.

3