CLD-439                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 13-2640
                                      ___________

                                BOB AARON MIKELL,
                                            Appellant

                                            v.

WARDEN MONICA RECKTENWALD; ATTORNEY GENERAL UNITED STATES
                         OF AMERICA
             ____________________________________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                             (D.C. Civil No. 1-13-cv-00189)
                    District Judge: Honorable William W. Caldwell
                     ____________________________________

                       Submitted for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 September 26, 2013
             Before: RENDELL, JORDAN and SHWARTZ, Circuit Judges

                           (Opinion filed: October 15, 2013)
                                       _________

                                       OPINION
                                       _________

PER CURIAM

      Pro se appellant Bob Mikell appeals the United States District Court for the

Middle District of Pennsylvania’s order dismissing his habeas petition filed under 28

U.S.C. § 2241. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and
we exercise plenary review over the District Court’s legal conclusions and apply a clearly

erroneous standard to its factual findings. See Cradle v. United States ex rel. Miner, 290

F.3d 536, 538 (3d Cir. 2002). For the reasons set forth below, we will summarily affirm

the District Court’s judgment. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.

       Mikell is a prisoner currently incarcerated at FCI-Allenwood. In September 2007,

he pleaded guilty in the United States District Court for the Southern District of Georgia

to one count of conspiracy to possess with intent to distribute and to distribute cocaine

and cocaine base in violation of 21 U.S.C. § 846. See S.D. Ga. Cr. A. No. 06-0026-10.

On January 8, 2008, he was sentenced to 132 months’ imprisonment. Mikell was

sentenced as a career offender, see U.S. Sentencing Guidelines Manual § 4B1.1(a), a

classification that was based on two prior Georgia state convictions — one for the sale of

cocaine, and one for possession of cocaine with the intent to distribute. Mikell appealed

his criminal judgment to the Eleventh Circuit, and that Court affirmed. See United States

v. Mikell, 284 F. App’x 707 (11th Cir. 2008).

       In February 2010, Mikell filed a motion under 28 U.S.C. § 2255, claiming that his

counsel had been ineffective, that he had not entered his guilty plea knowingly and

intelligently, and that his state convictions were invalid and should not have been used to

calculate his federal sentence. See S.D. Ga. Civ. A. No. 09-0065. In January 2011, a

magistrate judge recommended that Mikell’s motion be denied on the merits, and on

March 3, 2011, the District Court approved and adopted the magistrate judge’s report and

recommendation. The Eleventh Circuit then denied Mikell’s motion for a certificate of

appealability.

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       After other filings not relevant here, on January 25, 2013, Mikell filed a petition

for habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the

Middle District of Pennsylvania. He claimed that he was “actually innocent of being a[]

Career Offender” based on the Supreme Court’s decision in Carachuri-Rosendo v.

Holder, 130 S. Ct. 2577 (2010),1 and because he did not actually commit the state crimes

that underlie his career-offender status. The District Court dismissed Mikell’s petition,

concluding that it lacked jurisdiction to review the petition because the claims could be

raised in only a § 2255 motion. Mikell then filed a timely notice of appeal.

       We agree with the District Court’s disposition of this case. “Motions pursuant to

28 U.S.C. § 2255 are the presumptive means by which federal prisoners can challenge

their convictions or sentences[.]” Okereke v. United States, 307 F.3d 117, 120 (3d Cir.

2002). However, a federal prisoner can seek relief 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. This occurs “only where the petitioner

demonstrates that some limitation of scope or procedure would prevent a § 2255


1
  In Carachuri-Rosendo, the Supreme Court considered whether a Texas state drug
offense for simple possession qualified under the Immigration and Nationality Act (INA)
as an “aggravated felony.” 130 S. Ct. at 2580. In general, a state drug conviction
constitutes an aggravated felony if the offense of conviction is analogous to a felony
under the federal Controlled Substances Act (CSA). See id. at 2581-82. In Carachuri-
Rosendo, the Court noted that, under the CSA, with certain irrelevant exceptions, simple
possession is punishable as a felony only when the defendant has a previous drug
conviction. Id. at 2581. The Supreme Court held that “when a defendant has been
convicted of a simple possession offense that has not been enhanced based on the fact of
a prior conviction, he has not been convicted under [the INA] of a felony punishable as
such under the Controlled Substances Act.” Id. at 2589 (internal quotation marks
omitted).
                                             3
proceeding from affording him a full hearing and adjudication of his . . . claims.” Id. at

538. This exception is extremely narrow and applies in only rare circumstances. In In re

Dorsainvil, 119 F.3d 245, 251-52 (3d Cir. 1997), we recognized that the exception could

apply where an intervening change in the law decriminalized the conduct for which the

petitioner had been convicted.

       Mikell asserts that he is innocent of being a career offender, and that, therefore, his

claim is properly brought under § 2241. There are several problems with Mikell’s

position — for instance, it is not clear how Carachuri-Rosendo actually supports his

cause, and he could have raised the arguments that he raises now in his § 2255 motion —

However, the simplest reason for denying the relief under § 2241 is that Dorsainvil

allows relief under § 2241 only when a subsequent statutory interpretation renders a

petitioner’s conduct no longer criminal. Id. at 251-52. Mikell makes no allegation that

he is actually innocent of the drug crime for which he was convicted; he asserts only that

his sentence was improper. The Dorsainvil exception is therefore inapplicable, and relief

under § 2241 is not available. See Okereke, 307 F.3d at 120-21 (holding that a petitioner

could not proceed under § 2241 because his argument was based on Apprendi v. New

Jersey, 530 U.S. 466 (2000), which “dealt with sentencing and did not render conspiracy

to import heroin, the crime for which Okereke was convicted, not criminal”).

       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.



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