ORDER

JOHN E. STEELE, District Judge.

The jury in United States v. Glover, et al., Case No. 9:95-cr-8021 (S.D. Fla), found Alfonso Wallace guilty of count one — conspiracy to distribute crack cocaine (21 U.S.C. § 846); counts two, three, and four — possessing, distributing, and manufacturing crack cocaine (21 U.S.C. § 841(a)); and count five — simple possession of cocaine (21 U.S.C. § 844(a)). On November 6, 1997, Wallace was sentenced to concurrent terms of life imprisonment on counts one, two, three, and four and thirty-six months of imprisonment on count five. The January 6, 1999, mandate affirmed Wallace's conviction and sentence. The sentencing court denied Wallace's (a) motion under 28 U.S.C. § 2255 (August 17, 2001) and (b) motion under Rule 60(b), which was construed as a second or successive motion under Section 2255 (August 30, 2011).

Challenging his conviction and sentence, Wallace petitions (Doc. 1) under 28 U.S.C. § 2241 for the writ of habeas corpus and argues that under DePierre v. United States, 131 S.Ct. 2225 (2011)1 and United States v. O'Brien,2 130 S.Ct. 2169, 2178-80 (2010), he is "actually innocent" of his life sentence. The respondent argues (Doc. 6) for dismissal because Wallace fails to establish entitlement to review under 28 U.S.C. § 2255's savings clause.

Discussion

Wallace attacks the validity of his sentence rather than the means of execution. Having unsuccessfully challenged his sentence by motion in the criminal case, Wallace petitions for the writ of habeas corpus under 28 U.S.C. § 2241. Wallace pursues relief under Section 2241 because relief under Section 2255 is barred as a successive petition. However, under these circumstances, Section 2255 expressly precludes a petition under Section 2241.

Section 2255 states that an application "shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court denied him relief. . . ." Wallace seeks to avoid the preclusive effect of that prohibition by invoking the "savings clause" in Section 2255, which permits relief under Section 2241 if "the remedy by motion [under Section 2255] is inadequate or ineffective to test the legality of [the applicant's] detention." However, Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999), states that:

To the extent that Wallace argues entitlement to relief under Section 2255's "savings clause," the argument is unavailing. The Eleventh Circuit has "categorically state[d], . . . that the savings clause does not apply to sentencing claims, at least not to those where the sentence imposed was within the statutory maximum." Gilbert v. United States, 640 F.3d 1293, 1315 (rejecting an attempt to bring a Section 2241 claim that petitioner had been wrongly sentenced as a career offender under U.S.S.G. § 4B1.1). Gilbert recognizes that "finality of judgment and the important interests that finality promotes" caution against examining a sentence that was correctly calculated when imposed even though subsequent interpretations of the guidelines would now require a different sentence. Gilbert, 640 F.3d at 1295.

To the extent Wallace relies on DePierre v. United States, 131 S.Ct. 2225 (2011), and United States v. O'Brien, 130 S.Ct. 2169, 2178-80 (2010), these cases are not retroactively applicable,4 and the cases do not render Wallace actually innocent of his offense. In light of these conclusions, which unmistakably govern the disposition of the petition in this case, Wallace is not entitled to habeas relief in this Section 2241 proceeding.

Conclusion

The action is DISMISSED WITH PREJUDICE. The Clerk is directed to enter judgment, to terminate any pending motion, and to close the case.

ORDERED.