Eleventh Circuit Notes Split Re Retroactive Applicability of Castillo in Petition for Habeas Corpus Under 28 U.S .C. § 2241

Per Rivers v. McKelvy , Slip Copy, 2007 WL 1575323 (11th Cir. June 1, 2007):

When a prisoner previously has filed a § 2255 motion to vacate, he must apply for and receive permission from the circuit court prior to filing a successive § 2255 motion. 28 U.S.C. §§ 2255, 2244(b)(3); In re Blackshire, 98 F.3d 1293, 1293 (11th Cir.1996). A petitioner who has filed and been denied a previous § 2255 motion may not circumvent the successive-petition rule simply by filing another petition under § 2241. Wofford, 177 F.3d at 1245.

Here, Rivers cannot show that § 2255 was inadequate or ineffective. Rivers relies on two cases to enable him to file under § 2241 through § 2255's savings clause: Edwards and Castillo. As a starting point, the decision in Edwards would not affect Rivers's conviction or sentence, Edwards did not announce a new rule of law, and Edwards was available to him before the district court denied his first § 2255 motion to vacate. Thus, to succeed, Rivers must rely on Castillo as the basis for his claim.

This court has not addressed whether Castillo is retroactively applicable on collateral review, and other circuits are divided on the issue. See United States v. Gonzales, 327 F.3d 416 (5th Cir.2003) (holding that Castillo is not retroactively applicable); but see United States v. Wiseman, 297 F.3d 975, 981-982 (10th Cir.2002) (concluding Castillo is retroactively applicable). We need not resolve this issue, however, because Rivers cannot meet Wofford's second prong and show that he was convicted of a "nonexistent offense." Wofford, 177 F.3d at 1244. In Castillo, the Supreme Court did not de-criminalize the offense conduct for which Rivers has been convicted; it determined that the offense conduct was a separate aggravated offense. 530 U.S. at 131. Therefore, even if the jury did not find that the firearm involved was a machine gun for purposes of the enhanced sentence, Rivers was convicted of an existent offense and cannot satisfy the second Wofford prong. Accordingly, he is not entitled to relief under § 2241.