Patrick Lavender v. Darlene Drew, No. 07-11158 (11th Cir. 2007)
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT JULY 27, 2007 THOMAS K. KAHN CLERK No. 07-11158 Non-Argument Calendar ________________________ D. C. Docket No. 07-00022-CV-F-N PATRICK LAVENDER, Petitioner-Appellant, versus DARLENE DREW, Warden, UNITED STATES OF AMERICA, Respondents-Appellees. ________________________ Appeal from the United States District Court for the Middle District of Alabama _________________________ (July 27, 2007) Before DUBINA, CARNES and BARKETT, Circuit Judges. PER CURIAM: Patrick Lavender, 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, in which he argued that the sentencing court lacked personal jurisdiction over him because he was seized without due process of law. The district court determined that §2255 s savings clause was not available to allow him to file under § 2241. We review the availability of habeas relief under § 2241 de novo. Darby v. Hawk-Sawyer, 405 F.3d 942, 944 (11th Cir. 2005). Typically, a collateral attack on a federal conviction or sentence must be brought under § 2255. Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir. 2003). Under limited circumstances, however, a provision of § 2255, known as the savings clause, permits a federal prisoner to file a habeas petition pursuant to 28 U.S.C. § 2241 after the limitation period if a petition under §2255 is inadequate or ineffective to test the legality of his detention. See 28 U.S.C. §§ 2241(a), 2255 ¶ 5. We have held that the savings clause only applies when the petitioner shows 1) that the claim is based upon a retroactively applicable Supreme Court decision; 2) the holding of the Supreme Court decision establishes the petitioner was convicted for a nonexistent offense; and, 3) circuit law squarely foreclosed such a claim at the time it otherwise should have been raised in the petitioner s trial, appeal, or first § 2255 motion. 2 Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999). Here, Lavender is precluded from seeking relief under § 2241 because § 2255 s savings clause does not apply. He has failed to satisfy the first prong of the Wofford test because his claim is not based on a retroactive Supreme Court decision, and we need not address the remaining prongs. See Wofford, 177 F.3d at 1244-45. After careful review of the record and the briefs of both parties, we discern no reversible error. AFFIRMED. 3
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