ALD-321                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 13-3962
                                       ___________

                                  HARVEY HOLLAND,
                                               Appellant

                                             v.

                              WARDEN CANAAN USP
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                             (D.C. Civil No. 1:13-cv-01855)
                      District Judge: Honorable John E. Jones, III
                      ____________________________________

                       Submitted for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     July 31, 2014
         Before: RENDELL, FISHER and GREENAWAY, JR., Circuit Judges

                             (Opinion filed: October 2, 2014)
                                       _________

                                        OPINION
                                        _________

PER CURIAM

       A federal jury found Harvey Holland guilty of distributing and possessing, with

the intent to distribute, 50 grams or more of crack cocaine, as well as a related conspiracy

charge. The jury deadlocked on a charge related to the murder of Jason Harrigan. That

charge was subsequently dismissed, and Holland was sentenced to two concurrent terms
of life in prison. We affirmed the judgment, United States v. Holland, 76 F. App’x 452

(3d Cir. 2003), and the United States Supreme Court denied certiorari.

       In 2004, Holland filed a motion pursuant to 28 U.S.C. § 2255. The District Court

denied relief after a hearing, and we denied Holland’s subsequent application for a

certificate of appealability. Holland later filed unsuccessful applications for relief in the

District Court, including a Rule 60(b) motion and several petitions pursuant to 28 U.S.C.

§ 2241. He has not won any relief on appeal from orders denying or dismissing these

filings. We also have denied Holland’s § 2244 applications, including one based on

Alleyne v. United States, 133 S. Ct. 2151, 2162-63 (2013), and a claim that the District

Court impermissibly used Harrigan’s murder as relevant conduct to set his offense level

at sentencing.

       Before he filed his Alleyne-based § 2244 application, Holland filed another § 2241

petition in the District Court. He presented the claim under Alleyne that the District

Court impermissibly found facts relating to Harrigan’s murder in sentencing him.

Adopting a Magistrate Judge’s recommendation and rejecting Holland’s objections, the

District Court dismissed Holland’s § 2241 petition for lack of jurisdiction.1

       Holland appeals.2 We have jurisdiction over this appeal under 28 U.S.C. § 1291.

Our review is plenary. See Nuveen Mun. Trust v. WithumSmith Brown, P.C., 692 F.3d


1
  The dismissal was without prejudice to Holland’s bringing the § 2244 application
related to the Alleyne claim.
2
  Previously, because Holland did not submit the filing and docketing fees or a motion to
proceed in forma pauperis (“ifp”), his case was dismissed for failure to timely prosecute.
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283, 293 (3d Cir. 2012). Upon review, we will summarily affirm the judgment of the

District Court because no substantial issue is presented on appeal.3 See 3d Cir. L.A.R.

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

       The District Court was without jurisdiction to consider Holland’s Alleyne-based

claim under 28 U.S.C. § 2241. As the District Court concluded, Holland cannot bring his

claims under § 2241, because a motion to challenge his conviction and sentence pursuant

to 28 U.S.C. § 2255 is not “inadequate or ineffective.” 28 U.S.C. § 2255(e).

Section 2255 has been considered inadequate and ineffective for a petitioner convicted

and imprisoned for conduct since deemed not to be criminal. See In re Dorsainvil, 119

F.3d 245, 251 (3d Cir. 1997). However, § 2255 is not inadequate or ineffective just

because a movant, like Holland, who has previously filed a § 2555 motion, is unable to

meet its stringent gatekeeping requirements. See id.

       Although Holland argued to the contrary in the District Court, he did not make a

claim that fits under the In re Dorsainvil exception. See Okereke v. United States, 307



He has submitted a motion to reopen and a motion to proceed ifp, which we grant. See
See 3d Cir. L.A.R. Misc. 107.2(a); Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cir. 1976).
3
  After Holland’s appeal was listed for possible summary action, the Government was
permitted additional time to respond to the listing because of the Government shutdown.
In response, Holland filed a “motion to invoke procedural bar for 21 days over due date
10/3/2013 set by the Court.” He requested a “procedural bar” because the Government
had not filed anything in his case during the initial response period. With his motion, he
also submitted a copy of an application for a certificate of appealability that he had filed
in the District Court in which he set forth arguments why his § 2241 petition should have
been considered.

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F.3d 117, 120 (3d Cir. 2002). He did not contend that, as a result of a Supreme Court

decision issued after he filed his first § 2255 motion, the conduct for which he was

convicted is now non-criminal. He sought relief under Alleyne. Alleyne is essentially an

extension of Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the Supreme

Court held that “[o]ther than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be submitted to a

jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. In Alleyne, the Supreme

Court held that the same rule also applies to “facts that increase mandatory minimum

sentences.” 133 S. Ct. at 2163. We have held that “§ 2255 [i]s not inadequate or

ineffective for [a prisoner] to raise his Apprendi argument.” Okereke, 307 F.3d at 121.

We see no basis to treat differently Holland’s claim brought under Alleyne.

       In short, Holland presented a claim for which § 2255 is not an inadequate or

ineffective remedy. The District Court properly dismissed his § 2241 petition.

Accordingly, having granted Holland’s motion to reopen this proceeding and motion to

proceed ifp, we will affirm the District Court’s decision. Holland’s motion to invoke a

procedural bar is denied.4




4
 Although Holland provided us with a copy of his application for a certificate of
appealability that he filed in the District Court, we do not understand him to be seeking a
certificate from us. We note nonetheless that federal prisoners seeking relief under
§ 2241 do not require a certificate of appealability to proceed with an appeal. See United
States v. Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000) (en banc).

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