                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                        No. 12-2974

                                     JOSEPH SCOTT,
                                         Appellant

                                             v.

                                WARDEN J. T. SHARTLE

                     On Appeal from the United States District Court
                              for the District of New Jersey
                                (Civ. No. 1-11-cv-04298)
                        District Judge: Hon. Jerome B. Simandle

                                  Argued: May 20, 2014

                     Before: McKEE, Chief Judge, CHAGARES and
                              NYGAARD, Circuit Judges

                               (Opinion filed: July 17, 2014)

JOHN C. O’QUINN, ESQ.
MICHAEL A. GLICK, ESQ. (Argued)
DAVID C. HOLMAN, ESQ.
Kirkland & Ellis, LLP
655 Fifteenth Street, N.W.
Suite 1200
Washington, D.C. 20005

Attorneys for Appellant1


1
  The attorneys for the appellant are appearing pro bono following a prior order granting
appellant’s motion to proceed in forma pauperis. The judges of this court express our
gratitude to those attorneys for accepting this matter pro bono and for the quality of their
representation of their client. We also thank Kirkland & Ellis, LLP for permitting them
to offer their service. Lawyers who act pro bono fulfill the highest service that members
of the bar can offer to needy parties and to the legal profession.
MYTHILI RAMAN, ESQ.
Acting Assistant Attorney General
DENIS J. McINERNEY, ESQ.
Deputy Assistant Attorney General
MICHAEL A. ROTKER, ESQ. (Argued)
Attorney, Appellate Section
United States Department of Justice
Criminal Division
950 Pennsylvania Avenue, N.W.
Suite 1264
Washington, D.C. 20530

ELIZABETH A. PASCALL, ESQ.
Office of United States Attorney
Camden Federal Building & Courthouse
401 Market Street
Camden, NJ 08101

MICHELLE PIONKOWSKI, ESQ.
Office of United States Attorney
1007 North Orange Street, Suite 700
P.O. Box 2046
Wilmington, DE 19899

Attorneys for Appellee

                                          OPINION

McKEE, Circuit Judge.

       Joseph Scott, a federal prisoner, appeals from the district court’s order dismissing

the habeas corpus petition he filed pursuant to 28 U.S.C. § 2241. For the reasons that

follow, we will affirm the district court’s order.

                      I. FACTS AND PROCEDURAL HISTORY

       Because we write for the parties only, we will recite only as much of the facts and

procedural history of this case as assist our discussion of this appeal.


                                              2
         In 1999, a federal grand jury in the District of Delaware charged Scott with

conspiracy to possess with intent to distribute cocaine and cocaine base, in violation of 21

U.S.C. §§ 846 and 841(a)(1) (Count 1), and possession with intent to distribute cocaine

base, in violation of 21 U.S.C. § 841(a)(1) (Count 4). A jury convicted Scott on both

Counts.

          Based on the quantity of drugs involved, Scott faced statutory sentencing ranges

of 10 years to life imprisonment on Count I, see 21 U.S.C. § 841(b)(1)(A), and 5 to 40

years imprisonment on Count 4, see 21 U.S.C. § 841(b)(1)(B).

         The Probation Office recommended that the district court sentence Scott as a

Career Offender under U.S.S.G. § 4B1.1, because his criminal history included two

qualifying predicate Delaware state court convictions: a 1996 drug conviction (a

“controlled substance offense”) and a 1997 second-degree assault conviction (a “crime of

violence”). Those two predicate offenses resulted in a Guidelines sentencing range of

360 months to life. Scott objected to the consideration of his drug conviction on the

ground that he was only 17 years old at the time. The district court overruled his

objection, and sentenced Scott as a career offender under the then-mandatory Sentencing

Guidelines to 360 months imprisonment, to be followed by five years, supervised

release.2

         On appeal, we affirmed Scott’s conviction in an unpublished opinion, but vacated

his supervised release term in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).


2
    Scott was sentenced prior to United States v. Booker, 543 U.S. 220 (2005).

                                              3
United States v. Scott, 259 F.3d 717 (3d Cir. 2001) (table). On remand, the district court

resentenced Scott to 360 months imprisonment, to be followed by three years’ supervised

release.

       In 2002, Scott filed a motion to vacate his sentence under 28 U.S.C. § 2255,

raising five claims of ineffective assistance of counsel. The district court denied four of

his claims, and ruled that it would hold an evidentiary hearing on his claim that counsel

was ineffective for failing to file a petition for a writ of certiorari. United States v. Scott,

243 F. Supp.2d 97 (D. Del. 2003). The district court granted Scott’s motion and issued

a stipulated order allowing Scott to file a petition for certiorari. In 2004, the Supreme

Court denied certiorari. 541 U.S. 1035 (2004).

       In 2005, Scott filed another § 2255 motion, again alleging ineffective assistance of

counsel. Scott v. United States, No. 05-267 (D. Del.). The district court denied this

motion as an unauthorized “second or successive” motion. Id.

       On March 3, 2011, Scott filed a motion under Fed.R.Civ.P. 60 to reduce his

sentence based on Begay v. United States, 553 U.S. 137 (2008). There, the Supreme

Court addressed the definition of “violent felony” for purposes of the Armed Career

Criminal Act (“ACCA”).3 The Court held that a violent felony must be “roughly similar,

in kind as well as in degree of risk posed” to burglary, arson, extortion, or crimes

involving the use of explosives. 553 U.S. at 142-43. The Court noted that these crimes

3
  Authority addressing the definition of “violent felony” under the ACCA, which imposes
a mandatory prison term upon felons with three prior violent felonies, generally applies to
the definition of a “crime of violence” under the Sentencing Guidelines. United States v.
Johnson, 587 F.3d 203, 208 n.5 (3d Cir. 2009).

                                                4
all usually involve “purposeful, violent, and aggressive conduct.”Id. at 144-45 (citation

and internal quotation marks omitted). Reckless conduct does not qualify as a crime of

violence after Begay. United States v. Lee, 612 F.3d 170, 196 (3d Cir. 2010). In his Rule

60 motion, Scott argued, for the first time, that his 1997 second degree assault conviction

was not a “crime of violence,” in view of Begay’s narrowing construction of the term

“violent felony” in the ACCA, and that he was “innocent” of his career-offender

sentence.

         On May 5, 2011, during the pendency of the Rule 60 motion, Scott filed an

application with us for leave to file a successive § 2255 motion to raise his Begay claim.

We denied his application, holding that Scott’s claims did not satisfy the requirements of

28 U.S.C. § 2255(h).4 In re Scott, No. 11-2147 (3d Cir. June 2, 2011) (Order). We

wrote:

               [Scott’s] application pursuant to 28 U.S.C. § 2244(b) to file a
               second or successive motion to vacate sentence pursuant to 28
               U.S.C. § 2255 is denied. [Scott] seeks to present claims that
               he is not a career offender under Begay v. United States, 533
               U.S. 137 (2008), and that he received ineffective assistance of
               counsel. Such claims, however, do not satisfy the
               requirements of 28 U.S.C. § 2255(h) because they do not rely
               on a new rule of constitutional law, made retroactive to cases
               on collateral review by the Supreme Court, that was

4
  A district court lacks jurisdiction to consider a successive § 2255 motion unless it is
certified by a panel of this court to contain a claim of : “(1) newly discovered evidence
that, if proven and viewed in light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable factfinder would have
found the movant guilty of the offense; or (2) a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was previously
unavailable.” 28 U.S.C. § 2255(h)(1)-(2). Section 2255(h) is known as the “gate-
keeping” provision.

                                             5
              previously unavailable, or newly discovered evidence that, if
              proven and viewed in the light of the evidence as a whole,
              would be sufficient to establish by clear and convincing
              evidence that no reasonable factfinder would have found
              Appellant guilty of the offense. See 28 U.S.C. § 2255(h).


Following our denial of Scott’s application, the district court dismissed Scott’s Rule 60

motion, concluding that it was a disguised successive § 2255 motion.

       On July 27, 2011, Scott filed a pro se 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, the

district of his confinement, pursuant to the “safety valve” or “savings clause” provision of

28 U.S.C. § 2255(e), renewing his Begay-based sentencing challenge.5 On June 11,

2012, the district court dismissed the § 2241 petition for lack of jurisdiction, holding that

Scott was barred from seeking relief under the safety valve provision because he had not

shown that § 2255 was “inadequate or ineffective to test the legality of his sentence.”

Scott v. Warden J.T. Shartle, Civ. No. 11-4298 (D.N.J. June 11, 2012).

       Scott then filed a timely appeal from the district court’s dismissal of his § 2241

petition.6


5
  Section 2255(e) provides: “An application for a writ of habeas corpus on behalf of a
prisoner who is authorized to apply for relief by motion pursuant to this section, shall not
be entertained it if appears that the applicant has failed to apply for relief, by motion, to
the court which sentenced him, or that such court has denied him relief, unless it also
appears that the remedy by motion is inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255(e).
6
 We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). Our review of a
district court’s denial of habeas corpus relief is de novo. Vego v. United States, 493 F.3d
310, 314 (3d Cir. 2007). We exercise plenary review over the district court’s legal
conclusions and apply a clearly erroneous standard to its findings of fact. Id. We review
                                              6
       Upon review, we conclude that the district court properly dismissed Scott’s § 2241

petition for lack of jurisdiction. Typically, a federal prisoner raises a collateral attack to a

sentence through 28 U.S.C. § 2255. See Okereke v. United States, 307 F.3d 117, 120 (3d

Cir. 2002). However, a federal prisoner can proceed under § 2241 instead if a § 2255

motion is “inadequate or ineffective.” 28 U.S.C. § 2255; In re Dorsainvil, 119 F.3d 245,

249 (3d Cir. 1997). In Dorsainvil, we explained that this “safety valve” applies only in

rare circumstances, such as when an intervening change in the statute under which the

petitioner was convicted renders the petitioner’s conduct non-criminal. Id. at 251

(explaining that a federal prisoner can use § 2241 where he “had no earlier opportunity to

challenge his conviction for a crime that an intervening change in substantive law may

negate.”).

       As noted at the outset, in his § 2241 petition, Scott argued that he was wrongly

sentenced under the career offender guideline because one of his predicate convictions,

viz.., his 1997 second-degree assault conviction, was improperly designated a “crime of

violence,” in light of the Court’s decision in Begay v. United States, supra. Scott was

therefore challenging his career offender designation. He was not claiming that because

of an intervening change in the substantive law, he is now innocent of the predicate

offense he was convicted of.

       In his appeal, Scott repeats the arguments he made in the district court. However,

because he is challenging his career offender designation and is not claiming that he is


dismissals for lack of subject matter jurisdiction under a de novo standard. PennMont
Secs. v. Frucher, 586 F.3d 242, 245 (3d Cir. 2009).
                                               7
now innocent of the predicate offense, he does not fall within the “safety valve”

exception created in In re Dorsainvil and cannot proceed under § 2241. See Okereke,

307 F.3d at 120-21 (holding that Dorsainvil did not permit petitioner to challenge his

sentence via § 2241 because his argument was based on intervening change in sentencing

law and did not render the crime he was convicted of not criminal).

                                             II.

       For the above reasons, we will affirm the district court’s order of dismissal.




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