Petitioner Wayland Thomas Wilson appeals the denial of his 28 U.S.C. § 2241 petition arguing that his conviction of money laundering must be overturned based on the holding in
United States v. Santos,
I.
Wilson was convicted after a jury trial in 1993 of one count of conspiring to distribute cocaine, three counts of using a telephone to facilitate drug trafficking, and one count of money laundering. He was sentenced to a total of 444 months of imprisonment. His convictions and sentences were affirmed on appeal.
See United States v. Clark,
In July 2008, Wilson filed a § 2241 petition, wherein he argued that his conviction for money laundering was invalid based upon the holding of
Santos,
The magistrate judge (MJ) found that the issue argued by Wilson was not cognizable in a § 2241 petition because he failed to demonstrate his actual innocence, one of the requirements of the savings clause of § 2255, as set forth in
Reyes-Requena v. United States,
While this appeal was pending, this court decided
Garland v. Roy,
II.
Because Wilson is proceeding under § 2241, he is not required to obtain a COA to pursue his appeal.
See Jeffers v. Chandler,
A petitioner can attack the validity of his conviction and sentence in a § 2241
*435
petition only if he can meet the requirements of the “savings clause” of § 2255(e).
Kinder v. Purdy,
Relief under § 2255 is not “inadequate or ineffective” for purposes of the savings clause merely because the prisoner has filed a prior unsuccessful § 2255 motion or is unable to meet the requirements for filing a second or successive § 2255 motion.
Tolliver v. Dobre,
Retroactivity of Santos.
In
Garland,
this court held that
Santos
applies retroactively.
Nonexistent offense.
Relying on Santos, 1 Wilson argues that he is actually innocent of money laundering because he did not conduct a financial transaction that involved the profits of a specified unlawful activity and, as a result, he was convicted of a nonexistent offense. Section 1956(a)(1) provides that:
Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity ... (A)(i) with the intent to promote the carrying on of specified unlawful activity
is guilty of money laundering. 18 U.S.C. § 1956. In
Santos,
the issue was whether “proceeds” should be interpreted broadly to mean “receipts” of specified unlawful activity or narrowly to include only the “profits” of such activity.
Justice Stevens, the tie-breaker, concurred in the judgment that “proceeds” means “profits” where the specified unlawful activity is illegal gambling because the legislative history of § 1956 was silent as to this type of venture.
Id.
at 524-28,
In
Garland,
the money being laundered was derived from a fraudulent pyramid scheme. This court interpreted Justice Stevens’s concurrence as requiring a bifurcated analysis.
Garland,
But we conclude that the Garland inquiry is unnecessary in this case because Wilson was convicted of laundering money derived from the sale of contraband, i.e., illegal drugs. Santos was a split decision by the Supreme Court with a four-justice plurality forming the majority on the issues joined by Justice Stevens’s concurrence. In Garland, we held that Justice Stevens’s concurrence was the controlling law. Id. at 396 n. 4.
Justice Stevens agreed with that part of Justice Alito’s dissent asserting that “the legislative history of § 1956 makes it clear that Congress intended the term ‘proceeds’ to include gross revenues from the sale of contraband and the operation of organized crime syndicates involving such sales.”
Santos,
In light of the plurality opinion’s discussion of “the stare decisis effect of Justice Stevens’ opinion,” ante, at 523 [128 S.Ct. at 2030 ],170 L.Ed.2d, at 926 , it must be noted that five Justices agree with the position taken by Justice Stevens on the *437 matter discussed in the preceding sentence of the text.
Id.
at 532 n. 1,
As indicated, this court in Garland determined that Justice Stevens’s concurrence is the controlling law. Accordingly, in this case, which involves laundering the proceeds of the sales of illegal drugs, Santos does not have the effect of undermining Wilson’s money laundering conviction, and thus Wilson cannot satisfy the requirement that he may have been convicted of a nonexistent offense. 3 Therefore we need not consider the remainder of the test, i.e., whether his claim was foreclosed by circuit law so that he is excused from raising it when it should have been raised at trial, on direct appeal, or in his first § 2255 motion.
III.
For these reasons, the district court did not err in denying Wilson’s petition under § 2241. Accordingly, the judgment of dismissal is AFFIRMED.
Notes
. Wilson also argues that the savings clause applies based upon the Supreme Court's decision in
Cuellar v. United States,
. The Santos plurality explained the merger problem that existed in the illegal lottery operation in that case as follows:
*436 If "proceeds” meant "receipts,” -nearly every violation of the illegal-lottery statute would also be a violation of the money-laundering statute, because paying a winning bettor is a transaction involving receipts that the defendant intends to promote the carrying on of the lottery. Since few lotteries, if any, will not pay their winners, the statute criminalizing illegal lotteries ... would “merge” with the money-laundering statute.
. We follow a number of other circuits that have reached the same result in drug trafficking cases based on this interpretation of the above passages in Justice Stevens’s concurrence.
See United States v. Quinones,