HLD-097(February 2011)                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 10-4340
                                     ___________

                                 MIGUEL CABRERA,
                                               Appellant
                                        v.

                    WILLIAM SCISM, Warden of Allenwood, LSCI
                     ____________________________________

                   On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                              (D.C. Civil No. 10-cv-01821)
                   District Judge: Honorable Christopher C. Conner
                     ____________________________________

        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
                                  February 28, 2011
         Before: MCKEE, Chief Judge, ALDISERT AND WEIS, Circuit Judges

                             (Opinion filed April 18, 2011)
                                      _________

                                       OPINION
                                       _________

PER CURIAM.

             On October 25, 2002, Miguel Cabrera entered into a plea agreement and

was subsequently sentenced to 216 months of imprisonment under 21 U.S.C. § 846 for

conspiring to distribute drugs. On January 17, 2006, Cabrera moved to vacate, set aside,
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or correct his sentence pursuant to 28 U.S.C. § 2255. The District Court dismissed the

motion as untimely filed.

              On August 30, 2010, Cabrera filed a petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2241. His petition challenged his conviction on the ground that,

after he was sentenced, the Supreme Court changed the legal landscape regarding the

distinction between sentencing factors and elements for conviction under 21 U.S.C. §

846. As a consequence, Cabrera claims, he was never convicted of the crime that he was

sentenced for because the Government did not prove drug type – an element of the crime

– beyond a reasonable doubt. Further, because the jury never found the identity of the

controlled substance beyond a reasonable doubt, he argues that his sentence exceeds the

default statutory maximum of not more than one year, as set forth under 21 U.S.C §

841(b)(3). See United States v. Lacy, 446 F.3d 448, 454 (3d Cir. 2006) (holding that

when drug type and amount serve to increase the maximum statutory penalty, it must be

treated as an element of the offense).

              The District Court dismissed Cabrera’s petition for lack of jurisdiction

because his claims challenged the legality of his sentence and, therefore, should have

been brought in a motion under § 2255. Although Cabrera sought to proceed under §

2241, the District Court found that § 2255 was not inadequate or ineffective such as to

authorize pursuit of a habeas corpus petition. The District Court also determined that

Cabrera could not proceed under § 2255 because he had not obtained permission to file a

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second or successive § 2255 motion as required by 28 U.S.C. § 2244(b)(3)(A).

              Cabrera moved for reconsideration, arguing that § 2241 was the appropriate

remedy because his claims are based on new interpretations of 21 U.S.C. §§ 846 and

841(a)(1) that were not available to him when he filed his first § 2255 motion. The

District Court denied reconsideration. Cabrera appealed. We have appellate jurisdiction

pursuant to 28 U.S.C. § 1291. Because this appeal does not present a substantial

question, we will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R.

27.4; 3d Cir. I.O.P. 10.6.

              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); Okereke v. United States, 307 F. 3d 117, 120

(3d Cir. 2002). A habeas petitioner may seek relief under § 2241 only if the remedy

provided by § 2255 is “inadequate or ineffective” to test the legality of his detention. See

In re Dorsainvil, 119 F.3d 245, 249-51 (3d Cir. 1997). A § 2255 motion is not

“inadequate or ineffective” merely because the petitioner cannot meet the stringent

gatekeeping requirements of § 2255, see Okereke, 307 F.3d at 120, or because the

sentencing court does not grant relief. See Cradle v. United States, 290 F.3d 536, 539 (3d

Cir. 2002). Rather, the “safety valve” provided under § 2255 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

                                             3
by an intervening change in law. See Okereke, 307 F.3d at 120 (citing Dorsainvil, 119

F.3d at 251).

                We agree with the District Court that § 2241 is not the proper means of

raising these claims. Further, we agree that Cabrera has not demonstrated that a § 2255

motion provides an inadequate or ineffective remedy. The cases Cabrera cites, United

States v. O’Brien, 130 S. Ct. 2169 (2010), and Dean v. United States, 129 S. Ct. 1849

(2009), do not reflect an intervening change in law. Nor does either of these cases apply

directly to Cabrera.1 Cabrera had a prior opportunity to challenge his sentence under §

2255, but failed to timely do so. A § 2255 motion is not “inadequate or ineffective”

merely because the petitioner cannot meet the stringent gatekeeping requirements of §

2255. Dorsainvil, 119 F.3d at 251. It follows, as the District Court concluded, that §

2241 is not the proper means of raising these claims, and the District Court lacked

jurisdiction to address them.

                Accordingly, we will summarily affirm the decision of the District Court.

See Third Cir. LAR 27.4; I.O.P. 10.6.


1
  In O’Brien, the Supreme Court found that, under 18 U.S.C. § 924, the statute
prohibiting the use or carrying of a firearm in relation to a violent or drug trafficking
crime, the fact that the firearm was a machinegun was an element of the offense to be
proved to the jury beyond a reasonable doubt. 130 S. Ct. at 2174. In Dean, the Supreme
Court held that the mandatory minimum sentence imposed under § 924(c)(1)(A)(iii)
required no separate proof of intent. 129 S. Ct. at 1856. Cabrera does not allege that he
was convicted or sentenced pursuant to 18 U.S.C. § 924. Thus, even if these cases did
reflect an intervening change in law, they would not have any retroactive effect on
Cabrera’s conviction or sentence.
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