ALD-256                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 14-1196
                                      ___________

                                  JAMES L. THOMAS,
                                              Appellant

                                            v.

               WARDEN, FEDERAL CORRECTIONAL INSTITUTION
                   ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                             (D.C. Civil No. 13-cv-00162)
                      District Judge: Honorable Kim R. Gibson
                     ____________________________________

                       Submitted for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    June 12, 2014
         Before: RENDELL, FISHER and GREENAWAY, JR., Circuit Judges

                              (Opinion filed: June 30, 2014)
                                       _________

                                       OPINION
                                       _________

PER CURIAM

       Pro se Appellant James L. Thomas is an inmate of the Federal Correctional

Institution in Loretto, Pennsylvania. He appeals from an order of the United States

District Court for the Western District of Pennsylvania denying his habeas petition filed
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pursuant to 28 U.S.C. § 2241. For the reasons that follow, we will affirm the judgment of

the District Court, though we modify the judgment to designate a dismissal, rather than a

denial, of the habeas petition.

       Thomas is serving a 400-month sentence for his 1993 federal conviction in the

Southern District of Alabama on a charge of conspiracy to distribute crack cocaine

(21 U.S.C. § 846). In 1997, after unsuccessfully pursuing a direct appeal, Thomas filed a

motion to vacate his sentence pursuant to 28 U.S.C. § 2255. The sentencing court denied

the motion in 2002, and the Eleventh Circuit denied a certificate of appealability.

Thomas later filed additional unsuccessful motions for relief in the sentencing court,

including a 2011 motion invoking Federal Rule of Civil Procedure 60(b) for relief from

the § 2255 judgment, which the sentencing court denied as an unauthorized second or

successive § 2255 motion. Also, in 2008 and 2012, Thomas filed motions pursuant to

18 U.S.C. § 3582(c)(2) to reduce his sentence. In denying those motions, the sentencing

court stated that Thomas was ineligible for sentencing relief in light of his having been

sentenced under the career offender guideline, U.S.S.G. § 4B1.1.

       Thomas then turned to the District Court and filed his § 2241 habeas petition,

disputing that he was sentenced as a career offender. He asserted that, at the time of his

sentencing, the career offender guideline did not apply to inchoate offenses such as his

§ 846 conspiracy conviction. In support, Thomas relied on United States v. Price,

990 F.2d 1367 (D.C. Cir. 1993). The assigned Magistrate Judge recommended that the

District Court summarily deny the § 2241 habeas petition, stating that a § 2255 motion is
                                             2
the presumptive means to obtain collateral relief from a federal conviction and sentence.

Noting that Thomas’s sentencing claims are among the types of errors typically remedied

via § 2255, the Magistrate Judge found that Thomas cannot show that § 2255 provides an

inadequate or ineffective remedy and thus cannot meet § 2255(e)’s exception for having

his claims considered by way of a habeas petition. Accordingly, the Magistrate Judge

concluded that the District Court could not consider the merits of Thomas’s habeas

petition. In addition, the Magistrate Judge noted that, even if it could consider Thomas’s

claims, neither this Court, nor the Eleventh Circuit, nor the Sentencing Commission

follows the decision in Price, upon which his claim relies. (See Report and

Recommendation at 5 (citing, inter alia, United States v. Hightower, 25 F.3d 182 (3d Cir.

1994)).) Thomas filed objections, again contesting that he ever was sentenced as a career

offender, urging that his claim be heard in light of the split in circuit authority concerning

the application of the career offender provision to his offense, and asserting that § 2241 is

his only remaining available remedy.1 The District Court rejected Thomas’s objections

as meritless, adopted the Magistrate Judge’s recommendation, and denied Thomas’s

§ 2241 habeas petition.

       Thomas appeals. We have appellate jurisdiction pursuant to 28 U.S.C. §§ 1291

and 2253(a). We exercise plenary review over the District Court’s legal conclusions and


1
 Thomas contended that § 2255 is no longer available to him, noting that he was not
arguing a new “watershed” rule of criminal procedure nor any newly discovered
evidence, which are the criteria for obtaining authorization for filing a second or
successive § 2255 motion. See 28 U.S.C. § 2255(h).
                                              3
apply a clearly erroneous standard to any factual findings. Cradle v. United States,

290 F.3d 536, 538 (3d Cir. 2002) (per curiam). The parties were notified that the appeal

would be submitted for possible summary action pursuant to Third Circuit LAR 27.4 and

I.O.P. 10.6. Thomas has filed a response.

       In his response, Thomas states he does not object to the disposition of his appeal

by way of summary action in light of our controlling precedential decision in Hightower.

We acknowledge Thomas’s concession on the merits of his claim, but we need not reach

the issue in concluding that summary affirmance is appropriate here. As stated by the

Magistrate Judge, a § 2255 motion filed in the sentencing court is the presumptive means

for a federal prisoner to challenge the validity of a conviction or sentence. See Davis v.

United States, 417 U.S. 333, 343 (1974); In re Dorsainvil, 119 F.3d 245, 249 (3d Cir.

1997). A habeas petitioner can seek relief under § 2241 only if the remedy provided by

§ 2255 is inadequate or ineffective to test the legality of his detention. See 28 U.S.C.

§ 2255; In re Dorsainvil, 119 F.3d at 249-51. A section 2255 motion is not “inadequate

or ineffective” merely because the petitioner cannot meet the stringent gatekeeping

requirements of § 2255, Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002), or

because the sentencing court does not grant relief, Cradle, 290 F.3d at 539. Rather, as

noted by the Magistrate Judge, § 2255’s “safety valve” clause is extremely narrow and

has been held to apply in unusual situations, such as those in which a prisoner has had no

prior opportunity to challenge his conviction for a crime later deemed to be non-criminal


                                             4
by an intervening change in law. See Okereke, 307 F.3d at 120 (citing In re Dorsainvil,

119 F.3d at 251).

         Thomas does not argue--and he has not shown--that such a circumstance exists in

his case. Because Thomas’s section 2241 habeas petition failed to satisfy § 2255(e)’s

safety valve provision, we agree with the District Court’s conclusion that it lacked

authority under § 2241 to consider Thomas’s claim. Accordingly, we will affirm the

judgment of the District Court, but we modify the judgment to dismiss, rather than deny,

Thomas’s habeas petition. See Robinson v. Johnson, 313 F.3d 128, 139-40 (3d Cir.

2002).




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