Frankie D. Miller v. Warden, FCC Coleman - Low,

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPTEMBER 30, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-14175
Non-Argument Calendar
________________________
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

-- 1 of 4 --

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
We review the availability of habeas relief under § 2241 de novo. Darby v. Hawk-1
Sawyer, 405 F.3d 942, 944 (11th Cir. 2005).
2

-- 2 of 4 --

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 non-
existent 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

-- 3 of 4 --

§ 2255 savings clause applies to “open the portal” to a § 2241 proceeding.
AFFIRMED.
4

-- 4 of 4 --