John G. Westine v. Willie Scott ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Dec. 09, 2009
No. 09-12649 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-03699-CV-CAM-1
JOHN G. WESTINE,
Petitioner-Appellant,
versus
WILLIE SCOTT,
Warden,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 9, 2009)
Before DUBINA, Chief Judge, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Appellant John G. Westine, a federal prisoner proceeding pro se, appeals
from the district court’s order dismissing his habeas corpus petition, brought
pursuant to 28 U.S.C. § 2241. The district court for the Northern District of
Georgia dismissed the § 2241 petition for lack of jurisdiction because Westine did
not file it in the judicial district where he was incarcerated. On appeal, Westine
does not address the district court’s order, but rather contends that he properly
brought this action pursuant to § 2241 because he satisfied the criteria necessary to
proceed under the savings clause of 28 U.S.C. § 2255.1“The availability of habeas relief under § 2241 presents a question of law
that this [C]ourt reviews de novo.” Sawyer v. Holder, 326 F.3d 1363, 1365 n.4
(11th Cir. 2003). “Typically, a petitioner collaterally attacks the validity of his
federal sentence by filing a petition under 28 U.S.C. § 2255.” Id. at 1365.
However, “[u]nder the savings clause of § 2255, a prisoner may file a § 2241
petition if an otherwise available remedy under § 2255 is inadequate or ineffective
to test the legality of his detention.” Id.; 28 U.S.C. § 2255(e). We have held that a
petitioner may use the “savings clause” to “open the portal” to a § 2241 proceeding
when:
1
Because Westine seeks to proceed under § 2241, not § 2255, he is not required to
obtain a certificate of appealability before filing this appeal. See Sawyer v. Holder, 326 F.3d
1363, 1364 n.3 (11th Cir. 2003).
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1) [his] claim is based upon a retroactively applicable Supreme Court
decision; 2) the holding of that 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 & n.3 (11th Cir. 1999).
In this case, we conclude from the record that the district court correctly
determined that Westine was required to file his § 2241 petition in the judicial
district where he was incarcerated. See Rumsfeld v. Padilla, 542 U.S. 426, 447,
124 S. Ct. 2711, 2724-25, 159 L. Ed. 2d 513 (2004); Fernandez v. United States,
941 F.2d 1488, 1495 (11th Cir. 1991). Because it is undisputed that Westine was
not incarcerated in the Northern District of Georgia, we conclude that the district
court lacked jurisdiction to entertain his § 2241 petition. See Hajduk v. United
States, 764 F.2d 795, 796 (11th Cir. 1985). Accordingly, we affirm the judgment
of dismissal and do not address whether Westine could proceed under the savings
clause.
AFFIRMED.
3