Frankie Miller v. Warden, FCC Coleman - Low, No. 10-14175 (11th Cir. 2011)
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 10-14175 Non-Argument Calendar ________________________ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT SEPTEMBER 30, 2011 JOHN LEY CLERK 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 § 2241.1 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 1 We review the availability of habeas relief under § 2241 de novo. Darby v. HawkSawyer, 405 F.3d 942, 944 (11th Cir. 2005). 2 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 3 § 2255 savings clause applies to open the portal to a § 2241 proceeding. AFFIRMED. 4
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