FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 March 28, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-16233

Non-Argument Calendar

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D. C. Docket No. 06-00083-CV-3

STEPHEN LESTER DAVIS, 

Petitioner-Appellant, 

versus 

MICHAEL PUGH, 

Warden, 

Respondent-Appellee. 

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Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(March 28, 2007)

Before TJOFLAT, DUBINA, and HULL, Circuit Judges.

PER CURIAM:
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Appellant Stephen Lester Davis, a pro se federal prisoner, appeals the

district court’s dismissal of his petition for writ of habeas corpus filed pursuant to

28 U.S.C. § 2241. The district court dismissed Davis’s petition because it found

that the “savings clause” of 28 U.S.C. § 2255 did not apply, and therefore, Davis

could not seek relief under 28 U.S.C. § 2241. 

On appeal, Davis argues that the “savings clause” of 28 U.S.C. § 2255

applies, and he should be allowed to file a habeas petition pursuant to 28 U.S.C.

§ 2241. Davis argues that he is actually innocent of being a leader or organizer,

and, therefore, should not have received an enhanced sentence pursuant to

U.S.S.G. § 3B1.1(a). More specifically, Davis argues that there was no evidence

introduced in the district court to show his exercise of authority, degree of control,

influence, or leadership. Davis does not argue that he is actually innocent of the

substantive offense for which he was convicted. 

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

we review de novo. See 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). 

However, under limited circumstances, a provision of § 2255 permits a federal

prisoner to file a habeas petition pursuant to 28 U.S.C. § 2241. See 28 U.S.C. §§
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2241(a), 2255. That provision, known as the “savings clause,” provides that

[a]n application for a 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. See 28

U.S.C. § 2255. The burden of coming forward with evidence affirmatively

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

movant. Dukes v. United States, 189 Fed. Appx. 850, 851 (11th Cir. 2006) (citing

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. We have held that 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, 1244-45 (11th Cir. 1999). Consequently, a petitioner who has filed a

previous § 2255 motion which the court denied may not circumvent the AEDPA’s
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successive-motion rule simply by filing a petition under § 2241. Id. We have

established that 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. In order for a prisoner to avail himself of the § 2241 remedy under Wofford,

all three criteria must be satisfied. See id. at 1244-45. 

A petitioner may not argue the merits of his claim until he has “open[ed] the

portal” to a § 2241 proceeding by demonstrating that the savings clause applies to

his claim. Id. at 1244 n.3. If a petitioner successfully reaches the merits of his

claim, the proper inquiry is whether the petitioner can overcome a procedural

default for not raising the claim earlier by showing actual innocence. Id.

After reviewing the record, we conclude that the district court did not err by

dismissing Davis’s § 2241 petition. Davis is precluded from seeking relief under

§ 2241 because § 2255’s “savings clause” does not apply. Davis has not even

attempted to comply with the first prong of the three-part Wofford test because he

has not made any argument that his claim is based on a retroactively applicable

Supreme Court decision. Thus, we need not address the remaining prongs. See
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Wofford, 177 F.3d at 1245 (holding that “the only sentencing claims that may

conceivably be covered by the savings clause are those based upon a retroactively

applicable Supreme Court decision overturning circuit precedent”). However, it is

worth noting that Davis is challenging the length of his sentence due to the district

court’s application of U.S.S.G. § 3B1.1(a), which does not satisfy the second prong

of the Wofford test because a sentencing enhancement has no connection to a

conviction for a non-existent sentence.

Because Davis has not established the applicability of § 2255’s savings

clause, we do not need to consider the merits of his actual innocence claim. 

Davis’s actual innocence claim is not relevant because he did not show that the

savings clause of § 2255 applies. See Wofford, 177 F.3d at 1244 n.3 (stating that

“[o]nce the savings clause of § 2255 applies to open the portal to a § 2241

proceedings the proper inquiry in that § 2241 proceedings will be whether the

petitioner can establish actual innocence of the crime for which he has been

convicted.”). 

Because Davis has not satisfied the three-part Wofford test, § 2255’s savings

clause does not apply, and, thus, Davis cannot seek relief under § 2241. Therefore,

we affirm the judgment of the district court.

AFFIRMED.