FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 SEPTEMBER 30, 2011

JOHN LEY

CLERK

[DO NOT PUBLISH]

 IN THE UNITED STATES COURT OF APPEALS

 FOR THE ELEVENTH CIRCUIT

 ________________________

 No. 10-14175 

Non-Argument Calendar

 ________________________

 D.C. Docket No. 5:10-cv-00363-WTH-GRJ

FRANKIE D. MILLER, 

 Petitioner-Appellant,

 versus

WARDEN, FCC COLEMAN - LOW, 

 Respondent-Appellee.

________________________

 Appeal from the United States District Court

 for the Middle District of Florida

 ________________________

(September 30, 2011)

Before BARKETT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

Frankie Miller, a pro se federal prisoner, appeals the district court’s
dismissal of his petition for writ of habeas corpus attacking his convictions and

sentences for money laundering and controlled substance offenses, filed pursuant

to 28 U.S.C. § 2241. The district court found that Miller could not proceed under

§ 2241 because he had filed a prior 28 U.S.C. § 2255 motion that was denied on

the merits, and the savings clause of § 2255 did not apply to allow him to proceed

under § 2241. 

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“Typically, a petitioner collaterally attacks the validity of his federal

sentence by filing a petition under 28 U.S.C. § 2255.” Sawyer v. Holder, 326 F.3d

1363, 1365 (11th Cir. 2003). However, under the savings clause of § 2255, a

prisoner may file a § 2241 petition in limited circumstances—if the petitioner

establishes that § 2255’s remedy is inadequate or ineffective to test the legality of

his detention. Id. To meet this standard, a petitioner must show that: (1) his claim

is based upon a retroactively applicable U.S. Supreme Court decision; (2) the

holding of the U.S. Supreme Court decision established that the petitioner was

convicted of a non-existent offense; and (3) circuit law squarely foreclosed such a

claim at the time it otherwise should have been raised at the petitioner’s trial,

direct appeal, or first § 2255 motion. Wofford v. Scott, 177 F.3d 1236, 1244 (11th

 We review the availability of habeas relief under § 2241 de novo. Darby v. Hawk- 1

Sawyer, 405 F.3d 942, 944 (11th Cir. 2005). 

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Cir. 1999). Only if the petitioner “opens the portal” to a § 2241 petition by

establishing these three elements may he proceed to argue the merits of his claim. 

See id. at 1244 n 3.

In addition, if a federal prisoner previously filed a § 2255 motion that was

denied or dismissed with prejudice, he must apply for and receive permission from

the court of appeals before filing a successive § 2255 motion. 28 U.S.C.

§ 2244(b)(3)(A); 28 U.S.C. § 2255(h); Darby, 405 F.3d at 945. The restrictions on

successive § 2255 motions do not, by themselves, render that section inadequate

or ineffective. Darby, 405 F.3d at 945. Thus, a petitioner who previously filed a

§ 2255 motion to vacate cannot circumvent the successive motion restrictions by

simply filing a § 2241 petition. Id. 

Applying these standards, the district court properly dismissed Miller’s

§ 2241 petition. Because Miller previously filed a § 2255 motion, which was

denied on the merits, he could not again seek relief pursuant to § 2255 without

obtaining prior authorization from this Court, which he did not do. Nor can Miller

seek relief under § 2241 because he has not identified as the basis of any claim a

retroactive Supreme Court decision that establishes he was convicted of a nonexistent offense, nor has he asserted any legal claim that was unavailable to him at

the time he filed his previous § 2255 motion. Thus, he has failed to show that the

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§ 2255 savings clause applies to “open the portal” to a § 2241 proceeding. 

AFFIRMED.

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