FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 MARCH 2, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-12856

Non-Argument Calendar

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D. C. Docket No. 09-00160-CV-OC-10GRJ

CHARLES RODNEY LOVETT,

Petitioner-Appellant,

versus

WARDEN, FCC Coleman- USP I,

Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(March 2, 2010)

Before BIRCH, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
Charles Rodney Lovett, a federal prisoner, appeals the district court’s

dismissal without prejudice of his pro se petition for writ of habeas corpus,

pursuant to 28 U.S.C. § 2241. The district court did not err in dismissing Lovett’s

petition without prejudice because Lovett failed to meet his burden of showing that

a 28 U.S.C. § 2255 motion was an ineffective remedy. Accordingly, we AFFIRM.

I. BACKGROUND

In February 2006, Lovett pled guilty to possession of a firearm by a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The district

court sentenced him to 180 months of imprisonment, followed by 60 months of

supervised release. Lovett did not appeal.

In April 2009, the district court docketed Lovett’s instant pro se motion,

entitled “Verified Petition for Writ of Habeas Corpus Filed Pursuant to the 1940th

Edition of 28 U.S.C. § 451 Et Seq.” R1-1 In his petition, Lovett argued that 18

U.S.C. § 3231, 28 U.S.C. § 2241, and 28 U.S.C. § 2255 were unconstitutional

because they were not properly enacted. Id. at 4-15, 17-25. Accordingly, he

claimed that his conviction and incarceration were illegal and unconstitutional

because the district court never had jurisdiction over him. Id. at 17. He also

claimed that, because the district court did not have subject-matter jurisdiction

pursuant to § 2241 or § 2255, he had the right to raise his habeas corpus petition

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under 28 U.S.C. § 451. Id. Lovett also challenged the constitutionality of his

conviction, arguing that 18 U.S.C. §§ 922(g) and 924 did not apply to him because,

as he had never registered the firearm he possessed, and that he had not consented

to be subject to federal firearms restrictions. Id. at 25-27. Lovett further claimed

that 18 U.S.C. § 922(g) was unconstitutional because it was not within Congress’s

authority under the Commerce Clause. Id. at 28-30. Finally, Lovett argued that

the government and the district court committed fraud by indicting and convicting

him under unconstitutional statutes, and thus his indictment and conviction were

null and void. Id. at 31-37. He sought to have his convictions vacated and to be

released from prison immediately. Id. at 38.

The district court dismissed Lovett’s petition without prejudice, (1)

construing it as a petition filed pursuant to 28 U.S.C. § 2241; but (2) finding that

Lovett was challenging the validity of his sentence rather than the means of its

execution; and (3) noting that the primary means of collaterally attacking a federal

conviction and sentence was through a motion pursuant to 28 U.S.C. § 2255. R1-

3. Lovett filed this appeal. R1-5.

II. DISCUSSION

Lovett first reargues the merits of his original petition. Lovett points out that

since jurisdictional claims cannot be waived, forfeited, time barred, or procedurally

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defaulted, the district court had the obligation to address the merits of his

jurisdictional claims. He argues that, pursuant to Clisby v. Jones, 960 F.2d 925

(11th Cir. 1992), and the Due Process Clause, the district court was obligated to

address all the claims raised in his habeas petition regardless of whether habeas

relief was granted or denied.

“When reviewing the district court’s denial of a habeas petition, we review

questions of law and mixed questions of law and fact de novo, and findings of fact

for clear error.” Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000) (per

curiam). Ordinarily, a defendant may only pursue a collateral attack on the validity

of his federal conviction or sentence pursuant to a motion filed under 28 U.S.C. §

2255. See Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir. 2003). However, on

rare occasions, it is possible for federal prisoners to attack their convictions and

sentences through § 2241if the petitioner establishes that the remedy under § 2255

is inadequate or ineffective. 28 U.S.C. § 2255(e); McGhee v. Hanberry, 604 F.2d

9, 10 (5th Cir. 1979). “The burden of coming forward with evidence affirmatively

showing the inadequacy or ineffectiveness of the § 2255 remedy rests with the

petitioner.” McGhee, 604 F.2d at 10. We have articulated a three-prong test to

determine whether § 2255 is inadequate or ineffective to test the legality of a

prisoner’s detention. According to that test, a prisoner must show

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1) that [the] 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 (11th Cir. 1999).

Federal courts may recharacterize a pro se litigant’s motion “in order to

avoid an unnecessary dismissal, to avoid inappropriately stringent application of

formal labeling requirements, or to create a better correspondence between the

substance of a pro se motion’s claim and its underlying legal basis.” See Castro v.

United States, 540 U.S. 375, 381-82, 124 S.Ct 786, 791-92 (2003) (internal

citations omitted). However, when a district court recharacterizes a motion as a

first § 2255 motion, it must “provide the litigant an opportunity to withdraw the

motion or to amend it so that it contains all the § 2255 claims he believes he has.”

Id. at 383, 124 S.Ct. at 792.

In Clisby, we expressed concern over the number of habeas cases we were

forced to remand for consideration of issues the district court did not resolve and

instructed district courts to resolve all claims presented in a habeas petition,

regardless of whether they granted or denied relief. Clisby, 960 F.2d at 935-36;

see also Rhode v. United States, 583 F.3d 1289, 1291 (11th Cir. 2009) (per curiam)

(holding that Clisby applies to federal prisoners). Clisby was not decided in the

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context of a petition that was dismissed without examination of the merits but in

the context of a petition where the merits were addressed, but the district court

failed to discuss all the issues presented. Clisby, 960 F.2d at 936.

As initial matters, first, Lovett’s argument that due process and Clisby

require the district court to address all of his claims fails because the district court

did not address any of Lovett’s claims but instead dismissed his motion because it

should have been filed pursuant to § 2255. R1-3; Clisby, 960 F.2d at 935-36.

Second, the government’s claim that the district court did not err because, if it had

recharacterized Lovett’s motion as a § 2255 it would have been time-barred, is not

relevant because, regardless of whether a § 2255 motion is timely, when a district

court recharacterizes a motion as a first § 2255, it first is required to give the

defendant certain warnings and the opportunity to add claims and arguments,

including those applicable to the timeliness of a § 2255 motion. See Castro, 540

U.S. at 383, 124 S.Ct. at 792.

In the instant case, the district court exercised its discretion to recharacterize

Lovett’s petition for habeas corpus, purported to be filed pursuant to 28 U.S.C. §

451, as a 28 U.S.C. § 2241 petition. See Castro, 540 U.S. at 381, 124 S.Ct at 791.

The district court then did not err in dismissing Lovett’s petition without prejudice

because Lovett did not meet the burden of showing that § 2255 was an ineffective

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remedy as he did not allege that his claims were based on a retroactively applicable

Supreme Court decision, that a Supreme Court decision made his offense

nonexistent, and that circuit law formerly foreclosed his claims. See Wofford, 177

F.3d at 1244; McGhee, 604 F.2d at 10.

III. CONCLUSION

Because Lovett failed to satisfy his burden of demonstrating that a motion

pursuant to 28 U.S.C. § 2255 would be an ineffective remedy, the district court did

not err in dismissing his petition for 28 U.S.C. § 2241 relief. Accordingly, we

AFFIRM.

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