ALD-329                                                          NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 14-1827
                                       ___________

                                    DAVID PODLOG,
                                              Appellant

                                              v.

                              WARDEN FORT DIX FCI
                       ____________________________________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                                (D.C. Civil No. 13-cv-7375)
                     District Judge: Honorable Jerome B. Simandle
                      ____________________________________

         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
                                    August 7, 2014
         Before: RENDELL, FISHER and GREENAWAY, JR., Circuit Judges

                            (Opinion filed: September 08, 2014)
                                         _________

                                         OPINION
                                         _________

PER CURIAM

       David Podlog, a federal prisoner proceeding pro se and in forma pauperis, appeals

from the District Court’s order dismissing for lack of jurisdiction his petition filed

pursuant to 28 U.S.C. § 2241. Because his appeal presents no substantial question, we

will summarily affirm the District Court’s order. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
                                             I.

        In 1993, a jury in the United States District Court for the Southern District of

New York, found Podlog guilty of conspiracy to distribute a controlled substance in

violation of 21 U.S.C. § 846. The District Judge thereafter concluded that Podlog’s

offense level and criminal history category mandated a sentence of 324 months in prison

and five years of supervised release. Upon review, the United States Court of Appeals for

the Second Circuit affirmed the conviction and sentence.

       In 1997, Podlog sought collateral relief by filing a motion pursuant to 28 U.S.C. §

2255. The District Court denied Podlog’s motion and the Court of Appeals denied his

request for a certificate of appealability. In 2013, the Court of Appeals denied Podlog’s

request for permission to file a second or successive 28 U.S.C. § 2255 petition..

       In December 2013, Podlog filed the current petition for a writ of habeas corpus

under 28 U.S.C. § 2241 in the United States District Court for the District of New Jersey,

where he is now incarcerated. Although Podlog couched his claim as one of “actual

innocence,” his primary contention was that his 27-year sentence was unconstitutional

under Apprendi v. New Jersey, 530 U.S. 466 (2000), because the District Judge, not a

jury, determined the quantity of drugs involved in his crime. The District Court dismissed

Podlog’s petition for lack of jurisdiction, determining that Podlog’s claim concerning the

legality of his sentence could only be raised—if at all—in a Section 2255 motion. See

Okereke v. United States, 307 F.3d 117 (3d Cir. 2002); In re Dorsainvil, 119 F.3d 245

(3d Cir. 1997). The District Court also declined to transfer the petition to the United
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States Court of Appeals for the Second Circuit as a request to file a second or successive

28 U.S.C. § 2255 motion, because that Court had already considered and rejected the

claim presented in the current petition.

       Podlog now appeals.

                                             II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. “We exercise plenary review

over the district court’s legal conclusions and apply a clearly erroneous standard to its

factual findings.” Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002).

       The District Court did not err in dismissing Podlog’s petition. 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; Okereke, 307 F.3d at 120. This occurs “only where the petitioner demonstrates that

some limitation of scope of procedure would prevent” the petitioner from receiving

adequate adjudication of his or her claims. Cradle, 290 F.3d at 538. This exception is

extremely narrow and applies only in rare circumstances. See, e.g., In re Dorsainvil, 119

F.3d at 251-52.

       Podlog cannot avail himself of the exception in this case. In In re Dorsainvil, we

held that Section 2241 allows relief when a subsequent statutory interpretation renders a

petitioner’s conduct no longer criminal. Id. Although Podlog tries to fit his claims into the

In re Dorsainvil exception, he has not alleged that the actions resulting in his conviction

have been de-criminalized. Rather, he asserts that the decision in Apprendi rendered his
                                              3
sentence illegal because the judge—rather than the jury—determined the quantity of

drugs involved in his crime. See Apprendi, 530 U.S. at 490 (holding 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”). As the District Court explained, we have stated that, “[u]nlike the

intervening change in law in In re Dorsainvil that potentially made the crime for which

that petitioner was convicted non-criminal, Apprendi dealt with sentencing and did not

render . . . the crime for which [the petitioner] was convicted, not criminal.” Okereke,

307 F.3d at 120. We then held that Section “2255 [i]s not inadequate or ineffective for [a

prisoner] to raise his Apprendi argument.” Id. at 121.

       In short, the District Court did not err in dismissing Podlog’s petition. He did not

demonstrate that Apprendi, or any other change in the law, has rendered the crime for

which he was convicted non-criminal. Accordingly, the In re Dorsainvil exception does

not apply, and Podlog has not established that Section 2255 is “inadequate or ineffective”

to challenge the legality of his detention. In addition, for the reasons explained by the

District Court, it properly declined to construe Podlog’s petition as one for leave to file a

second or successive Section 2255 motion and transfer it to the United States Court of

Appeals for the Second Circuit.

       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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