FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEBRUARY 16, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-14386

Non-Argument Calendar

________________________

D. C. Docket No. 06-00227-CV-3-LAC-EMT

CHARLES J. SPIGNER, 

Petitioner-Appellant, 

versus 

UNITED STATES OF AMERICA, 

Respondent, 

JOSE BARRON, JR., 

Warden, 

Respondent-Appellee. 

________________________

Appeal from the United States District Court

for the Northern District of Florida

_________________________

(February 16, 2007)
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Before TJOFLAT, BLACK and MARCUS, Circuit Judges.

PER CURIAM:

On April 18, 1997, the United States District Court for the Northern District

of Florida sentenced Petitioner to a prison term of 360 months on a plea of guilty

to conspiracy to possess crack cocaine with intent to distribute (the “NDFl Case”). 

The term was to run concurrently with a 240 months prison sentence the United

States District Court for the Middle District of Florida had imposed on Petitioner

for possessing crack cocaine with intent to distribute. We affirmed Petitioner’s

conviction and sentence in the NDFl Case on March 30, 1998, and on March 8,

1999, Petitioner moved the district court to vacate his conviction and sentence in 

that case pursuant to 28 U.S.C. § 2255. The district court denied his motion. 

Petitioner’s subsequent attempts to obtain § 2255 relief were rejected, principally

on the ground that they constituted successive motions. 

 In July 2006, Petitioner once again challenged his NDFl conviction and

sentence, this time with a petition for writ of habeas corpus filed pursuant to 28

U.S.C. § 2241. The district court denied his petition as barred under the savings

clause of § 2255. He now appeals that ruling, contending that § 2255’s savings

clause permits him to file his § 2241 petition because § 2255 is inadequate or
 Petition also contends – for the first time in this appeal – that the district judge should 1

have recused. We decline to consider the recusal issue because it was not presented to the

district court in the first instance.

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ineffective to test the legality of his conviction and sentence.

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Typically, collateral attacks on the validity of a federal conviction or

sentence must be brought under § 2255. Sawyer v. Holder, 326 F.3d 1363, 1365

(11th Cir. 2003). Section 2255 contains a “savings clause,” which permits a

prisoner to mount a collateral attack after having been denied § 2255 relief if relief

under that section is “inadequate or ineffective.” The savings clause provides that 

[a]n application for writ of habeas corpus in behalf of a prisoner who

is authorized to apply for relief by motion pursuant to this section,

shall not be entertained if it appears that the applicant has failed to

apply for relief, by motion, to the court which sentenced him, or that

such court has denied him relief, unless it also appears that the remedy

by motion is inadequate or ineffective to test the legality of his

detention. 

28 U.S.C. § 2255. Accordingly, a court may entertain a § 2241 petition attacking

custody resulting from a federally imposed sentence if the petitioner establishes

that the remedy provided for under § 2255 is inadequate or ineffective. The burden

of coming forward with evidence affirmatively showing the inadequacy or

ineffectiveness of the § 2255 remedy rests with the movant. McGhee v. Hanberry,

604 F.2d 9, 10 (5th Cir. 1979). 

When a prisoner has previously filed a § 2255 motion to vacate, he must
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apply for and receive permission from the court of appeals before filing a

successive § 2255 motion. 28 U.S.C. §§ 2244(b)(3), 2255. Such restrictions on

successive § 2255 motions, standing alone, do not render that section “inadequate

or ineffective” within the meaning of the savings clause. Wofford v. Scott, 177

F.3d 1236, 1245 (11th Cir. 1999). Consequently, a petitioner who has filed a

previous § 2255 motion, and been denied, may not circumvent the successivemotion rule simply by filing a petition under § 2241. Id. The savings clause only

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

petitioner was convicted of a “nonexistent offense;” and (3) “circuit law squarely

foreclosed such a claim at the time it otherwise should have been raised at the

petitioner’s trial, appeal, or first § 2255 motion.” Id. at 1244. For a prisoner to

avail himself of the § 2241 remedy under Wofford, all three criteria must be

satisfied. As we have made clear, all three criteria will be met only in the

narrowest of circumstances. Id. at 1244. 

The district court committed no error in dismissing the instant § 2241

petition. Petitioner is precluded from seeking relief under § 2241 because § 2255’s

savings clause does not apply. First, it appears that he has filed the present § 2241

petition in an effort to circumvent the rules limiting the scope of successive § 2255
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motions. Second, he cannot meet the initial prong of the test in Wofford because

he has not demonstrated that his claims are based on a retroactively applicable

Supreme Court decision. Given this fact, we need not address Wofford’s

remaining prongs.

AFFIRMED.