DLD-092                                                      NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 13-3977
                                       ___________

                              CLARENCE D. SCHREANE,
                                            Appellant

                                             v.

                         UNITED STATES OF AMERICA;
               UNITED STATES DISTRICT COURT FOR THE EASTERN
                  DISTRICT OF TENNESSEE AT CHATTANOOGA
                     ____________________________________

                      On Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                              (D.C. Civil No. 3-13-cv-01643)
                       District Judge: Honorable A. Richard Caputo
                       ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   December 5, 2013
          Before: SMITH, HARDIMAN and VAN ANTWERPEN, Circuit Judges

                                  (Filed: January 8, 2014)
                                         _________

                                        OPINION
                                        _________

PER CURIAM

      Clarence Schreane, proceeding pro se, appeals the United States District Court for the

Middle District of Pennsylvania’s order dismissing his petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. Because this appeal does not present a substantial question, we

will summarily affirm for principally the same reasons given by the District Court.

                                               I.

      In 2001, following a jury trial in the United States District Court for the Eastern District

of Tennessee, Schreane was convicted of possession of a firearm as a felon, in violation of 18

U.S.C. §§ 922(g)(1) and 924(e). He was sentenced to 327 months’ imprisonment and 5 years

of supervised release. The United States Court of Appeals for the Sixth Circuit affirmed the

judgment and conviction, see United States v. Schreane, 331 F.3d 548 (6th Cir. 2003), and the

United States Supreme Court denied certiorari on October 20, 2003, see Schreane v. United

States, 540 U.S. 973 (2003).

      On November 9, 2004, Schreane filed a motion pursuant to 28 U.S.C. § 2255. The

Eastern District of Tennessee denied the motion as untimely filed. Schreane filed a second

§ 2255 motion that the District Court determined was unauthorized. Consequently, the District

Court transferred the motion to the United States Court of Appeals for the Sixth Circuit to be

filed as an application requesting permission to file a second or successive § 2255 motion,

which the Sixth Circuit denied. Schreane unsuccessfully sought permission to file a second or

successive § 2255 motion in February 2009, March 2011, and May 2012. Schreane most

recently filed in the Sixth Circuit an additional application for permission to file a second or

successive § 2255 motion in June 2013.

      In May 2013, Schreane filed the current § 2241 petition in the United States District

Court for the Eastern District of Pennsylvania.        The Eastern District of Pennsylvania

transferred the petition to the United States District Court for the Middle District of

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Pennsylvania because Schreane is incarcerated within the Middle District. See Rumsfeld v.

Padilla, 542 U.S. 426, 443 (2004). Schreane raised four claims in his petition: (1) that his

initial arrest was unlawful; (2) that the charges against him should have been dropped prior to

trial due to a violation of the Interstate Agreement on Detainers Act; (3) that his constitutional

due process rights were violated during the pretrial stage; and (4) that the prosecution withheld

exculpatory evidence at trial in violation of Brady v. Maryland, 373 U.S. 83 (1963). Schreane

asserted that his conviction and sentence are illegal and should be overturned.

       In a report and recommendation, the Magistrate Judge recommended dismissing

Schreane’s § 2241 petition for lack of jurisdiction because Schreane challenged the validity of

his sentence, rather than its execution, and he failed to show that the remedy provided by

§ 2255 is inadequate or ineffective. Over Schreane’s objections, the District Court adopted the

report and recommendation and dismissed Schreane’s petition for lack of jurisdiction.

Schreane timely appealed.1

                                               II.

       We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). In our review of the

District Court’s order dismissing the § 2241 petition we “exercise plenary review over the

District Court’s legal conclusions and apply a clearly erroneous standard to its findings of




1
  On November 4, 2013, the Clerk dismissed the appeal for failure to pay the filing fee.
Schreane then filed a motion to proceed in forma pauperis and a motion to reconsider, which is
construed as a motion to reopen. These motions are granted. See 3d Cir. LAR Misc. 107.2(a).
Schreane also filed a motion requesting an order directing prison officials to return his legal
property. This motion is denied without prejudice to Schreane’s initiating a civil action in the
appropriate court seeking the return of his property.
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fact.” O’Donald v. Johns, 402 F.3d 172, 173 n.1 (3d Cir. 2005). We may summarily affirm if

the appeal does not present a substantial question. See 3d Cir. LAR 27.4; I.O.P. 10.6.

                                               III.

       Upon review, we conclude that the District Court properly dismissed Schreane’s § 2241

petition. Section 2241 “confers habeas jurisdiction to hear the petition of a federal prisoner

who is challenging not the validity but the execution of his sentence.” Coady v. Vaughn, 251

F.3d 480, 485 (3d Cir. 2001). While the “precise meaning of ‘execution of the sentence’ is

hazy,” Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 242 (3d Cir. 2005), we have defined

execution to mean “put into effect” or “carry out,” id. at 243. “[T]o challenge the execution of

his sentence under § 2241, [an inmate] would need to allege that [the Bureau of Prison’s]

conduct was somehow inconsistent with a command or recommendation in the sentencing

judgment.” Cardona v. Bledsoe, 681 F.3d 533, 537 (3d Cir. 2012). Schreane has failed to

make such allegations here, instead arguing that his constitutional and statutory rights were

violated before and during trial. These claims challenge the validity of Schreane’s conviction,

rather than its execution.

       Generally, federal prisoners challenge the validity of their conviction or sentence

through motions pursuant to 28 U.S.C. § 2255. See Davis v. United States, 417 U.S. 333, 343-

44 (1974). Section 2255 expressly prohibits a district court from considering a challenge to a

prisoner’s federal sentence under § 2241 unless the remedy under § 2255 is “inadequate or

ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e); see also Cradle v. United

States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002); In re Dorsainvil, 119 F.3d 245, 251 (3d

Cir. 1997). A motion under § 2255 is not “inadequate or ineffective” simply because the

                                                4
petitioner cannot meet the gatekeeping requirements of § 2255. Dorsainvil, 119 F.3d at 251.

However, we have held that § 2255 is inadequate or ineffective to test the legality of a

conviction where a petitioner “is being detained for conduct that has subsequently been

rendered non-criminal by an intervening Supreme Court decision” and the petitioner is

otherwise barred from filing a second or successive § 2255 motion. Id. at 251-52.

      Here, none of Schreane’s four claims for relief relies on an intervening change in the

law that has rendered the conduct for which he was convicted non-criminal. Accordingly,

Schreane cannot proceed under § 2241 pursuant to the approach recognized in Dorsainvil. See

id. at 252. Further, Schreane’s inability to satisfy the gatekeeping requirements of § 2255 does

not render the remedy inadequate or ineffective. Id. at 251. Thus, the District Court properly

dismissed the § 2241 petition.

                                              IV.

      For the foregoing reasons, this appeal presents no substantial question and we will

summarily affirm the District Court’s judgment. Murray v. Bledsoe, 650 F.3d 246, 247 (3d

Cir. 2011) (per curiam); see 3d Cir. LAR 27.4; I.O.P. 10.6.




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