FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 October 18, 2005 

 THOMAS K. KAHN 

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-11019

Non-Argument Calendar

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D. C. Docket No. 04-00102-CV-2

WILLIE OUTLER, 

Petitioner-Appellant, 

versus 

ROBERT E. MCFADDEN, 

Warden, Federal Satellite Low,

Respondent-Appellee. 

________________________

Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(October 18, 2005)

Before ANDERSON, CARNES and MARCUS, Circuit Judges.

PER CURIAM:
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Willie Outler, a pro se federal prisoner, appeals the district court’s dismissal

of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. On

appeal, Outler argues that, in light of United States v. Booker, 543 U.S. __, 125

S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court violated his Fifth and Sixth

Amendment rights when it enhanced his sentence based on facts neither alleged in

the indictment nor proven to a jury. Outler argues that 28 U.S.C. § 2255 is an

ineffective or inadequate avenue to challenge his detention because he has raised

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),

claims in prior motions, including a previous § 2255 motion. He contends that

because those prior motions were denied, “it was highly unlikely if the trial court

would . . . reverse itself if these [s]ame allegations were presented a second time,”

and, therefore, any remedy under § 2255 is inadequate or ineffective. 

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

we review de novo. Cook v. Wiley, 208 F.3d 1314, 1317 (11th Cir. 2000). 

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). 

The savings clause in § 2255, however, permits a prisoner to file a § 2241 petition

if an otherwise available remedy under § 2255 is “inadequate or ineffective to test

the legality of his detention.” 28 U.S.C. § 2255; Sawyer, 326 F.3d at 1365. The
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burden lies with the petitioner to affirmatively show that the remedy under § 2255

is inadequate or ineffective. McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979).

When a prisoner has previously filed a § 2255 motion to vacate, he must

apply for and receive permission from this Court before filing a successive § 2255

motion. 28 U.S.C. §§ 2244(b)(3), 2255; In re Blackshire, 98 F.3d 1293, 1293 (11th

Cir. 1996). The restrictions on successive § 2255 motions, standing alone, do not

render that section “inadequate or ineffective” within the meaning of the savings

clause, and a petitioner who has filed and been denied a previous § 2255 motion

may not circumvent the successive-motion rule simply by filing a petition under

§ 2241. See Wofford v. Scott, 177 F.3d 1236, 1245 (11th Cir. 1999). The savings

clause only applies when (1) the movant’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; see also Sawyer,

326 F.3d at 1365. 

Outler argues that the savings clause applies to him because the Supreme

Court’s decision in Booker should be applied retroactively on collateral review. 

We have held that “the constitutional rule announced in Booker is a prototypical
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procedural rule . . . . that do[es] not apply retroactively to § 2255 cases on

collateral review.” Varela v. United States, 400 F.3d 864, 867-68 (11th Cir. 2005). 

The first prong of the savings clause test therefore has not been met because

Booker is not retroactively applicable on collateral review. 

The second prong of the savings clause test also has not been met because

the offenses for which Outler was convicted have not been made “nonexistent” by

Booker. In Sawyer, we held that where a subsequent decision “clarified the

standard by which a jury must find the defendant guilty of a [specified crime]” and

where the defendant was convicted under the prior standard, the defendant was not

convicted of a “nonexistent offense” for the purposes of a habeas petition. Sawyer,

326 F.3d at 1366. Booker, even if it were retroactively applicable on collateral

review, addressed sentencing issues. It did not invalidate the crimes for which

Outler was convicted. Outler thus has not satisfied the prerequisites necessary to

invoke § 2255's savings clause. 

AFFIRMED.