DLD-296                                                       NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                    No. 12-2143
                                    ___________

                                 JAMES A. YATES,
                                            Appellant

                                          v.

                              BRYAN A. BLEDSOE
                     ____________________________________

                   On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                           (M.D. Pa. Civ. No. 11-cv-00592)
                   District Judge: Honorable William W. Caldwell
                    ____________________________________

Submitted on Appellant’s Motion to Reopen; Appellant’s Motion for Leave to Appeal In
Forma Pauperis and Affidavit in Support Thereof, Pursuant to Rule 24, Federal Rules of
 Appellate Procedure; and 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
                                 September 27, 2012

            Before: AMBRO, JORDAN and VANASKIE, Circuit Judges

                          (Opinion filed: October 15, 2012)
                                      _________

                                     OPINION
                                     _________

PER CURIAM
       James A. Yates appeals the dismissal of his petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2241, and from the court’s subsequent order denying his motion

for reconsideration. We will affirm.

       In 1997, Yates was convicted by a jury of various drug offenses in the United

States District Court for the Northern District of Illinois, and was sentenced to life

imprisonment. His conviction and sentence were affirmed on direct appeal. Yates

thereafter filed a motion in October 2001 seeking to vacate his sentence under 28 U.S.C.

§ 2255 on the basis of, inter alia, the alleged ineffective assistance rendered by defense

counsel. The District Court denied Yates’ § 2255 motion, and the United States Court of

Appeals for the Seventh Circuit subsequently denied his request for a certificate of

appealability.

       In May 2005, Yates – confined in the Middle District of Pennsylvania – filed a

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in that District Court. In

addition to raising ineffective assistance of counsel and due process claims, Yates

claimed an entitlement to habeas relief on account of his “actual innocence” under United

States v. Booker, 543 U.S. 220 (2005). The District Court dismissed Yates’ petition for

lack of jurisdiction after concluding that he failed to demonstrate that § 2255 would be

inadequate or ineffective to test the legality of his detention. We agreed with the District

Court’s determination that Yates could not meet the stringent gatekeeping requirements

of § 2255’s safety valve provision, and summarily affirmed its decision. Yates v. Smith,

190 F. App’x 113 (3d Cir. 2006) (nonprecedential).
                                              2
       Yates was likewise unsuccessful with a motion for reduction of sentence filed

pursuant to 18 U.S.C. § 3582 in June 2008. He fared no better with his application for

leave to file a second or successive § 2255 motion filed in the Seventh Circuit Court of

Appeals. Relying on the Supreme Court’s decision in United States v. O’Brien, __ U.S.

__, 130 S. Ct. 2169 (2010), Yates claimed that his mandatory life sentence is

unconstitutional because its imposition required additional facts neither charged nor

found by the jury. 1 The Court of Appeals denied the § 2244 application after concluding

that Yates had attacked his sentence under 21 U.S.C. § 848(b) on direct appeal and that

authorization to file a § 2255 motion containing such a claim – even one advanced under

a different theory – was thus barred by 28 U.S.C. § 2244(b)(1). Yates v. United States,

No. 11-1010 (7th Cir. filed Jan. 18, 2011).

       Undeterred, Yates returned to the District Court for the Middle District of

Pennsylvania two months later with yet another petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2241. Once again, Yates advanced a claim based on United

States v. O’Brien which, as the District Court noted, he argued changed the legal

landscape regarding the distinction between elements of a crime and sentencing factors.

Yates claimed specifically that his mandatory minimum life sentence under 21 U.S.C. §

848(b) for engaging in a continuing criminal enterprise (“CCE”) is unconstitutional



       1
         In O’Brien, the Supreme Court held 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, possession of a machinegun “[was] an element to be proved to the jury beyond a
                                              3
because the indictment did not charge, and the jury never found, that he was a principal,

organizer or leader of a criminal enterprise involving at least 1.5 kilograms of cocaine

base.

         The District Court dismissed Yates’ § 2241 petition for lack of jurisdiction after

concluding that his claims challenged the legality of his conviction and sentence and,

therefore, were within the purview of a motion under § 2255. The District Court further

concluded that § 2255 was not inadequate or ineffective so as to authorize the pursuit of a

habeas corpus petition, and rejected Yates’ argument that he should be able to proceed

under § 2241 with his claim that he is “actually innocent” of being a principal in the CCE

and, thus, of the resulting mandatory life sentence. The District Court determined that

O’Brien is not an intervening change in the law and, moreover, that it did not have the

effect of rendering Yates’ conduct non-criminal. In fact, it found that O’Brien was not

even directly applicable to Yates. Finally, the District Court noted that Yates’ inability to

satisfy § 2255’s gatekeeping requirements before the Seventh Circuit Court of Appeals

was an insufficient reason to allow him to pursue a § 2241 petition raising the same

claim.

         Yates sought to have the District Court reconsider its determination with a motion

filed pursuant to Fed. R. Civ. P. 59(e). Citing to the Supreme Court’s decisions in

DePierre v. United States, __ U.S. __, 131 S. Ct. 2225 (2011), and Cole v. Arkansas, 333



reasonable doubt,” not a “sentencing factor” to be proved to the judge at sentencing. 130
S. Ct. at 2172, 2180.
                                               4
U.S. 196 (1948), Yates argued that § 2241 was the appropriate remedy for a challenge to

his 1997 conviction because his claims are based on a new statutory interpretation of 21

U.S.C. §§ 841(a)(1), 846 and 848(b). In particular, Yates claimed that the Supreme

Court’s holding in DePierre, 131 S. Ct. at 2227-28, that the references to “cocaine base”

in 21 U.S.C. § 841(b)(1), meant not just cocaine base in crack form but all forms of

cocaine base, rendered his indictment deficient and the evidence presented at trial

insufficient to support the resulting conviction. This is so, according to Yates, because

the jury was not asked to consider the type and quantity of controlled substance involved

in the offense. Noting that Cole – a 1948 case – was certainly not an intervening change

in law, and that Yates made no attempt to demonstrate that DePierre rendered his conduct

innocent, the District Court denied reconsideration.

       Yates filed a notice of appeal. He was directed to pay the filing and docketing

fees to the District Court or to submit a motion to proceed in forma pauperis (“ifp”).

While Yates timely delivered his ifp motion to prison officials, it was delayed in reaching

this Court and his appeal was dismissed for failure to pay the fees. He was notified that if

he wished for his ifp motion to be considered, he had to file a motion to reopen. Shortly

thereafter, Yates filed a motion to reopen the appeal.

       We grant Yates’ motions to reopen and to proceed ifp on appeal. We have

jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. Our review of the District

Court’s decision to dismiss Yates’ § 2241 petition is plenary, see Cradle v. U.S. ex rel.

Miner, 290 F.3d 536, 538 (3d Cir. 2002), and we review the District Court’s order
                                             5
denying his motion filed under Rule 59(e) for an abuse of discretion. See Max’s Seafood

Café v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999).

       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, 343-44 (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, 290 F.3d at 539. 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 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 for raising

the claims Yates seeks to advance in the underlying petition. We further agree that Yates

has not demonstrated that a § 2255 motion provides an inadequate or ineffective remedy

in this case. As Yates himself appears to concede, the cases he cites – United States v.

O’Brien, 130 S. Ct. 2169 (2010), and DePierre v. United States, 131 S. Ct. 2225 (2011) –

do not reflect an intervening change in law which renders the crimes of which he was
                                              6
convicted non-criminal. Additionally, even accepting, arguendo, his contention that the

Supreme Court’s decisions in those two cases represent a significant change in statutory

construction or interpretation regarding the particular provisions at issue, Yates has failed

to demonstrate how either of these cases could have an effect on his conviction or

sentence as neither case has been held retroactively applicable.

       Yates had a prior opportunity to challenge his sentence under § 2255, and he did

so, albeit unsuccessfully. A § 2255 motion is not “inadequate or ineffective” merely

because a 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.

       For the foregoing reasons and because the appeal presents no substantial question,

we will summarily affirm the order of dismissal and the District Court’s subsequent order

denying reconsideration. See Third Circuit LAR 27.4 and I.O.P. 10.6.




                                              7
