Patrick Lavender v. Darlene Drew

U.S. Court of Appeals for the Eleventh Circuit
Patrick Lavender v. Darlene Drew, 230 F. App'x 945 (11th Cir. 2007)

Patrick Lavender v. Darlene Drew

Opinion

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.

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.

Reference

Full Case Name
Patrick LAVENDER, Petitioner-Appellant, v. Darlene DREW, Warden, United States of America, Respondents-Appellees
Status
Unpublished