Michael Trupei v. Harvey Lappin , 339 F. App'x 955 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10905 ELEVENTH CIRCUIT
JULY 31, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-00019-CV-3
MICHAEL TRUPEI,
Petitioner-Appellant,
versus
HARVEY G. LAPPIN,
Director of Federal Bureau
of Prisons (BOP),
WALT WELLS,
Warden at “CCA”,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(July 31, 2009)
Before DUBINA, Chief Judge, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant Michael Trupei appeals the dismissal of his pro se petition for
writ of habeas corpus under 28 U.S.C. § 2241, which dismissal was based on
Trupei’s failure to demonstrate that his petition was proper under the “savings
clause” of 28 U.S.C. § 2255. Trupei argues that the district court erred in
dismissing his § 2241 petition because the newly discovered evidence supporting
his claim of innocence could not be used to support his prior § 2255 motion, which
Trupei asserts makes § 2255 “inadequate” for the relief he now seeks.
The availability of habeas relief under § 2241 presents a question of law we
review de novo. Darby v. Hawk-Sawyer, 405 F.3d 942, 944 (11th Cir. 2005).
We explained the interplay and distinctions between § 2241 petitions and
§ 2255 motions at length in Darby:
The “savings clause” of § 2255 permits a prisoner to file
a § 2241 petition only if an otherwise available remedy
under § 2255 is “inadequate or ineffective” to test the
legality of his detention. 28 U.S.C. § 2255. The
Antiterrorism and Effective Death Penalty Act’s
(AEDPA’s), Pub. L. No. 104-132, 110 Stat. 1214 (1996),
restrictions on successive § 2255 motions, standing
alone, do not render that section “inadequate or
ineffective” within the meaning of the savings clause,
and, consequently, a petitioner who has filed and been
denied a previous § 2255 motion may not circumvent the
successive motion restrictions simply by filing a petition
under § 2241. Wofford v. Scott, 177 F.3d 1236, 1245
(11th Cir.1999). The savings clause only applies to “open
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a portal” to a § 2241 proceeding when (1) the “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 non-existent
offense; and, (3) circuit law squarely foreclosed such a
claim at the time it otherwise should have been raised.”
Id. at 1244.
405 F.3d at 944-945 (emphasis added); see also Flint v. Jordan, 514 F.3d 1165,
1168 (11th Cir.) (holding that the failure to meet the first prong of the savings
clause analysis – a retroactively applicable Supreme Court decision – ends the
inquiry), cert. denied, 129 S.Ct. 222 (2008); Wofford 177 F.3d at 1244 n.3 (“Once
the savings clause of § 2255 opens the portal to a § 2241 proceeding, the proper
inquiry in that § 2241 proceeding will be whether the petitioner can establish actual
innocence of the crime for which he has been convicted[.]”).
After reviewing the record and reading the parties’ briefs, we conclude that
the district court did not err in dismissing Trupei’s § 2241 petition on the record
before it. Nowhere in his petition, his briefing in the district court, or in his
appellate brief does Trupei cite a retroactive Supreme Court decision that applies to
his claim. Rather, Trupei merely asserts that his discovery of new evidence to
support his claim of innocence makes § 2255 inadequate or ineffective. This does
not meet the applicable standard. Darby, 405 F.3d at 945. Trupei has therefore
failed to meet the first prong of the savings clause test, which ends our inquiry.
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Flint, 514 F.3d at 1168. Accordingly, we affirm the judgment of dismissal.
Upon review of the record and consideration of the parties’ briefs, we affirm
the dismissal.
AFFIRMED.
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