Patrick LAVENDER, Petitioner-Appellant, v. Darlene DREW, Warden, United States of America, Respondents-Appellees, 230 F. App'x 945

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.