DLD-243                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 11-2288
                                      ___________

                                   LENELLE GRAY,
                                      Appellant

                                               v.

                                 B.A. BLEDSOE
                      ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                 (D.C. Civil No. 10-2194)
                        District Judge: Honorable Yvette Kane
                      ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                      July 21, 2011

          Before: FISHER, BARRY and VAN ANTWERPEN, Circuit Judges.

                                  (Filed: July 29, 2011)
                                       _________

                                        OPINION
                                        _________

PER CURIAM

       Lenelle Gray, a federal prisoner proceeding pro se, appeals from the district

court’s order dismissing his petition filed pursuant to 28 U.S.C. § 2241. Because his

appeal presents no substantial question, we will summarily affirm the district court’s

order. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
                                              I.

       In 2005, Gray pled guilty to two counts of possession with intent to distribute

cocaine, and one count of using a firearm in a drug trafficking offense, violating 18

U.S.C. § 924(c), in the United States District Court for the Northern District of Ohio,

Eastern Division. (N.D. Oh. 05-cr-00143.) It appears that he voluntarily dismissed his

direct appeal in October 2006. In July 2009, Gray filed a motion to vacate his sentence

under 28 U.S.C. § 2255 in the Northern District of Ohio. The motion was dismissed as

untimely, and the United States Court of Appeals for the Sixth Circuit denied Gray’s

request for a certificate of appealability on April 1, 2010.

       Gray is currently confined in the United States Penitentiary at Lewisburg,

Pennsylvania. On October 25, 2010 he filed a petition for a writ of habeas corpus under

28 U.S.C. § 2241 in the United States District Court for the Middle District of

Pennsylvania. He argues that pursuant to United States v. Lopez, 514 U.S. 549 (1995), he

was wrongfully convicted of violating 18 U.S.C. § 924(c) because he merely possessed

the firearm at issue. 1 He asserts he committed a state, rather than federal, offense

       1
        Lopez invalidated the Gun-Free Schools Zones Act, determining that it was
unconstitutional because it “neither regulate[d] a commercial activity nor contain[ed] a
requirement that the possession [of a firearm] be connected in any way to interstate
commerce.” 514 U.S. at 551. Accordingly, the Supreme Court held that the Act
exceeded the authority of Congress “to regulate Commerce . . . among the several states.”
Id.

      We note that conviction under 18 U.S.C. § 924(c) requires the government to
show: (1) the immediate availability and physical transportation of a firearm by the
defendant (2) in relation to a drug trafficking offense.


                                              2
because possession of a firearm does not affect interstate commerce and that he is thus

actually innocent under Lopez.

       The district court thereafter provided Gray with a notice pursuant to United States

v. Miller, 197 F.3d 644 (3d Cir. 1999). Because Gray failed to respond to the Miller

notice, the district court considered the petition under Section 2241. And on May 4,

2011, the district court adopted the Magistrate Judge’s recommendation and dismissed

Gray’s petition for lack of jurisdiction, determining that Section 2241 was not the proper

vehicle for bringing his claim.

       Gray now appeals.

                                             II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. “We exercise plenary review

over the district court’s legal conclusions and apply a clearly erroneous standard to its

factual findings.” Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002).

       As the district court determined, Gray’s claim is not viable under Section 2241. A

federal prisoner can challenge his conviction or sentence under 28 U.S.C. § 2241 if the

remedy provided by 28 U.S.C. § 2255 is “inadequate or ineffective” to test the legality of

his or her detention. Cradle, 290 F.3d at 538; Okereke v. United States, 307 F.3d 117,

120 (3d Cir. 2002). This occurs “only where the petitioner demonstrates that some

limitation of scope or procedure would prevent” the petitioner from receiving adequate

adjudication of his or her claims under § 2255. Cradle, 290 F.3d at 538. This exception

is extremely narrow and applies only in rare circumstances. See, e.g., In re Dorsainvil,

                                              3
119 F.3d 245, 251-52 (3d Cir. 1997) (applying exception where an intervening change in

the law decriminalized the conduct underlying the petitioner’s conviction and he had no

other opportunity to pursue his claim).

       Gray asserts that he is actually innocent of violating 18 U.S.C. § 924(c) because

the conduct for which he was arrested was a state crime and the firearm did not implicate

the Commerce Clause. Thus, he appears to argue that under Lopez, he was wrongfully

convicted. Without regard to the substantive merit of his claim, Gray does not meet the

requirements for proceeding under § 2241. As noted above, Dorsainvil allows relief

under Section 2241 when a subsequent change in law renders a petitioner’s conduct no

longer criminal. See Okereke, 307 F.3d at 120-21. However, as the district court

explained, Gray was convicted ten years after Lopez was decided. Accordingly, there

was no intervening change in the law that decriminalized the conduct for which Gray was

convicted.

       Finally, Gray has not demonstrated that § 2255 is an “inadequate or ineffective”

method by which to make his challenge. See Cradle, 290 F.3d at 538. The Northern

District of Ohio dismissed Gray’s first § 2255 motion as untimely, making it likely that

Gray would encounter hurdles in filing a second § 2255 motion. However, we have

repeatedly held that a prisoner’s inability to meet § 2255’s stringent gatekeeping

requirements does not render it inadequate or ineffective. Id. at 538-39 (“It is the

inefficacy of the remedy, not the personal inability to use it, that is determinative.”).




                                              4
       For these reasons, we conclude that this appeal presents “no substantial question,”

and will therefore summarily affirm the district court’s judgment. See 3d Cir. L.A.R.

27.4; I.O.P. 10.6.




                                            5
