       ALD-161                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 11-1190
                                       ___________

                                    IRVING MASON,
                                                         Appellant

                                             v.

                          WARDEN DONNA ZICKEFOOSE
                       ____________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                                 (D.C. Civil No. 10-0197)
                       District Judge: Honorable Noel L. Hillman
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    April 14, 2011
            Before: SCIRICA, HARDIMAN and VANASKIE, Circuit Judges

                              (Opinion filed: April 28, 2011)
                                        _________

                                        OPINION
                                        _________

PER CURIAM

       Irving Mason, an inmate at the Federal Correctional Institution in Fort Dix, New

Jersey, appeals the District Court’s order dismissing his petition for a writ of habeas

corpus under 28 U.S.C. § 2241. We have jurisdiction over this appeal pursuant to 28

U.S.C. § 1291, and we exercise plenary review over the district court’s legal conclusions
and apply a clearly erroneous standard to its factual findings. See Cradle v. United States

ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). For the reasons discussed below, we

will summarily affirm the District Court’s order.

       In July 2000, Mason was convicted in the United States District Court for the

Southern District of New York of, as relevant here, conspiracy to commit robbery and

attempted robbery in violation of the Hobbs Act, 18 U.S.C. § 1951, and was sentenced to

30 years’ imprisonment. He appealed his conviction, arguing that the government had

presented insufficient evidence to show that his conduct had the requisite effect on

interstate commerce. See § 1951(a) (providing for penalties for anyone who “obstructs,

delays, or affects commerce or the movement of any article or commodity in commerce,

by robbery or extortion or attempts or conspires so to do”). The Second Circuit rejected

his claim, explaining that “Mason and the criminal enterprise frequently targeted out-of-

state drug buyers,” that the intended victim was himself engaged in interstate commerce,

and that “the attempted robbery . . . could and probably did discourage interstate travel.”

United States v. Mitchell, 51 F. App’x 355, 358 (2d Cir. 2002). The Court therefore

affirmed the District Court’s judgment. See id.

       Mason next filed a motion to vacate his conviction under 28 U.S.C. § 2255. The

United States District Court for the Southern District of New York denied the motion,

and the Second Circuit declined to issue a certificate of appealability.

       Mason then filed the petition under 28 U.S.C. § 2241 that is at issue here. He

contends that the Second Circuit’s decision in United States v. Parkes, 497 F.3d 220 (2d
                                              2
Cir. 2007), has changed the legal landscape such that his Hobbs Act conviction is no

longer valid. In Parkes, the Second Circuit considered at some length the proper role of

the court and jury in adjudicating the interstate-commerce element of the Hobbs Act.

The Court noted that, at one point, it had held that it was appropriate for the district court

to decide as a matter of law whether the defendant’s conduct had affected interstate

commerce. See id. at 228 (citing United States v. Calder, 641 F.2d 76 (2d Cir. 1981)).

However, in 1995, the Supreme Court “undid” that line of cases when it held that a

criminal conviction must “‘rest upon a jury determination that the defendant is guilty of

every element of the crime with which he is charged,’” thus placing the decision whether

the crime affected interstate commerce in the jury’s hands. Id. at 226 (quoting United

States v. Gaudin, 515 U.S. 506, 510 (1995)). The Second Circuit explained that this is

how the law stood until 2002, when it held that the interstate-commerce element was

satisfied as a matter of law where the target of the Hobbs Act violation was the proceeds

of a drug transaction. See id. at 228 (citing United States v. Fabian, 312 F.3d 550, 555

(2d Cir. 2002)). Then, in Parkes, the Court overruled Fabian and held that the interstate-

commerce element is a question for the jury in all Hobbs Act cases. See id. at 230.

       Mason claims that the district court utilized the instruction authorized by Fabian

but proscribed by Parkes.1 He thus argues that his conviction must be vacated both


       1
         While Mason has not submitted a copy of the district court’s jury instructions,
for the purposes of this opinion, we will assume that the district court did in fact use this
instruction. We note, however, that the record is by no means clear on this point. In its
opinion denying Mason’s post-trial motion, the district court considered whether the
                                              3
because the jury did not find him guilty of every element of the Hobbs Act offense and

because, without a finding that his crime affected interstate commerce, there was no

federal jurisdiction in the district court. The District Court concluded that Mason’s

petition was in essence a successive § 2255 motion, and thus dismissed it for lack of

jurisdiction. See § 2255(h). Mason then filed a timely notice of appeal.

       We agree with the District Court’s analysis. As we have recognized, “under the

explicit terms of 28 U.S.C. § 2255, unless a § 2255 motion would be ‘inadequate or

ineffective,’ a habeas corpus petition under § 2241 cannot be entertained by the court.”

Cradle, 290 F.3d at 538 (quoting § 2255(e)); see also Application of Galante, 437 F.2d

1164, 1165 (3d Cir. 1971) (“This Court has time and again ruled that in a situation such

as here presented habeas corpus relief is unavailable for lack of jurisdiction.”).

       There is an exception to this rule, however, which permits prisoners to proceed

under § 2241 where “the remedy by [§ 2255] motion is inadequate or ineffective to test

the legality of [the] detention.” § 2255(e). In In re Dorsainvil, 119 F.3d 245 (3d Cir.

1997), we explained that § 2255 may be inadequate or ineffective where an intervening

change in law has potentially made the conduct for which the petitioner was convicted

non-criminal. See id. at 248 (permitting use of § 2241 in case of “party who claims that

s/he is factually or legally innocent as a result of a previously unavailable statutory

interpretation”). However, the exception is narrow: a motion under § 2255 is not

evidence in the record was sufficient for the jury to have found that Mason’s crime
affected interstate commerce, without any reference to the Fabian rule. Further, Fabian
was issued in December 2002, about two-and-a-half years after Mason was convicted.
                                              4
inadequate or ineffective simply because the district court has refused to grant relief or

the petitioner is prevented by § 2255(h)’s gatekeeping requirements from litigating his

current claims. See Cradle, 290 F.3d at 538 (“It is the inefficacy of the remedy, not the

personal inability to use it, that is determinative.”).

       Mason argues that this exception applies to him because the change in law

wrought by Parkes has rendered him actually innocent of the Hobbs Act charge. We

disagree. As a consequence of Parkes, the interstate-commerce element is no longer

satisfied as a matter of law in all drug cases. However, this does not mean that Mason’s

conduct did not affect interstate commerce (and that his conduct was thus non-criminal).

See generally Kramer v. Olson, 347 F.3d 214, 218 (7th Cir. 2003). In fact, on direct

appeal, the Second Circuit reviewed the record and concluded, without reference to the

Fabian rule, that Mason’s crime — attempting to rob a drug dealer who traveled to New

York from North Carolina to buy drugs — did affect interstate commerce. See Mitchell,

51 F. App’x at 358. This analysis is entirely consistent with both Parkes, 497 F.3d at

229-31, and the mine run of cases, see, e.g., United States v. McCraney, 612 F.3d 1057,

1065 (8th Cir. 2010); United States v. Perrotta, 313 F.3d 33, 37-38 (2d Cir. 2002).

Therefore, Mason cannot make the showing of actual innocence necessary to proceed

under § 2241. See, e.g., Cephas v. Nash, 328 F.3d 98, 105 (2d Cir. 2003) (concluding

that “where [prisoner’s] asserted innocence is plainly belied by the record, then the

savings clause of § 2255 is not triggered and dismissal of the § 2241 petition for lack of

jurisdiction is warranted”).
                                                5
       We thus conclude that Mason has failed to show that § 2255 is inadequate or

ineffective, and that the District Court therefore properly dismissed his § 2241 petition.

While the District Court dismissed the petition with prejudice, we understand the

dismissal to be without prejudice to Mason’s right to request permission from the Second

Circuit to file a successive petition. See 28 U.S.C. § 2255(h). With this understanding,

we will summarily affirm the District Court’s order. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.




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