CLD-178                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-1273
                                       ___________

                                  CARL VAN PUTTEN,
                                             Appellant

                                             v.

                            WARDEN LEWISBURG USP
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. Civil No. 4:17-cv-00085)
                      District Judge: Honorable Matthew W. Brann
                      ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    March 30, 2017
            Before: SHWARTZ, GREENBERG and FISHER, Circuit Judges

                              (Opinion filed: April 7, 2017)
                                      _________

                                        OPINION*
                                        _________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Carl Van Putten, an inmate presently confined at the United States Penitentiary in

Lewisburg, Pennsylvania, appeals the dismissal of his pro se habeas corpus petition

pursuant to 28 U.S.C. § 2241. We will affirm.

       Van Putten was convicted of committing murder while engaged in a major

narcotics conspiracy and aiding and abetting that crime, in violation of 21 U.S.C. §

848(e)(1)(A) and 18 U.S.C. § 2 in the United States District Court for the Southern

District of New York. He was sentenced to a term of life imprisonment, five years of

supervised release, and a $100 special assessment. The United States Court of Appeals

for the Second Circuit affirmed Van Putten’s conviction, vacated his sentence, and

remanded for the district court to determine whether it was aware that it could deviate

from the Sentencing Guidelines. United States v. Van Putten, 282 F. App’x 950, 953 (2d

Cir. 2008). On remand, the district court re-imposed the same sentence and the Second

Circuit affirmed. United States v. Putten, 362 F. App’x 218, 220 (2d Cir. 2010). Van

Putten filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. §

2255 in the Southern District of New York, alleging that his trial counsel provided

ineffective assistance. Van Putten v. United States, No. 11 CIV. 0633 GBD, 2011 WL

2749874 (S.D.N.Y. July 8, 2011). The motion was denied. Thereafter, the Second

Circuit declined to grant Van Putten leave to file a second or successive § 2255 motion.

Van Putten v. U.S.A., C.A. No. 16-3373 (order entered on October 31, 2016).

       On January 17, 2017, Van Putten filed a petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2241 in the United States District Court for the Middle District of
                                             2
Pennsylvania, the district in which he is incarcerated. In his petition, Van Putten claimed

an entitlement to habeas relief on the basis of Alleyne v. United States, 133 S. Ct. 2151

(2013). Specifically, he claimed that, in light of the Supreme Court’s ruling in Alleyne,

his mandatory life sentence for murder was unlawful. The District Court screened Van

Putten’s petition pursuant to Rule 4 of the Rules Governing Habeas Corpus Cases and

dismissed it for lack of jurisdiction, concluding that Van Putten’s Alleyne claim did not

qualify for § 2255 “safety valve” relief under § 2241. See In re Dorsainvil, 119 F.3d 245,

251 (3d Cir. 1997). Van Putten appealed.

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

the District Court’s decision to dismiss Van Putten’s § 2241 petition is plenary. See

Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002) (per curiam).

        A motion filed under 28 U.S.C. § 2255 in the sentencing court is the presumptive

means for a federal prisoner to challenge the validity of a conviction or sentence. See

Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). In certain limited

circumstances, a federal prisoner can seek relief under § 2241 in the district of

confinement if the remedy provided by § 2255 is inadequate or ineffective to test the

legality of his detention. 28 U.S.C. § 2255(e); see Dorsainvil, 119 F.3d at 249-51. We

have applied this “safety valve” only in the rare situation where a prisoner has had no

prior opportunity to challenge his conviction for actions deemed to be non-criminal by an

intervening change in law. Okereke, 307 F.3d at 120. A § 2255 motion is not

“inadequate or ineffective” merely because the petitioner cannot meet the stringent
                                             3
gatekeeping requirements of § 2255, id., or because the sentencing court does not grant

relief, Cradle, 290 F.3d at 539.

       We agree with the District Court that Van Putten’s claims do not fit within the

narrow class of circumstances in which a § 2255 motion would be inadequate or

ineffective to challenge his conviction. His claims do not rely on an intervening change

in the law that has rendered the conduct for which he was convicted non-criminal. In

support of his petition, Van Putten argued that Alleyne v. United States, 133 S. Ct. 2151

(2013), made his sentence illegal because the jury did not find premeditation beyond a

reasonable doubt. Even if Alleyne were applicable, Van Putten cannot obtain relief, as

Alleyne claims cannot be raised in a § 2241 petition. Gardner v. Warden Lewisburg

USP, 845 F.3d 99, 102 (3d Cir. 2017). Likewise, § 2241 does not provide an avenue for

consideration of Van Putten’s argument that Alleyne should be held to apply retroactively

to cases on collateral review in light of the Supreme Court’s recent decisions in

Montgomery v. Louisiana, 136 S. Ct. 718 (2016), and Welch v. United States, 136 S. Ct.

1257 (2016).1 Van Putten failed to raise his sentencing challenge on direct appeal or in

his § 2255 motion. Thus, it is Van Putten’s inability to meet the gatekeeping

requirements of § 2255(h) that has prevented him from obtaining relief, not the

inadequacy or ineffectiveness of the § 2255 remedy.




1
 We have held that Alleyne cannot be retroactively applied to cases on collateral appeal.
United States v. Winkelman, 746 F.3d 134, 136 (3d Cir. 2014).
                                           4
      For the foregoing reasons, we conclude that the appeal presents no substantial

question. Therefore, we will summarily affirm the District Court’s judgment. See Third

Circuit LAR 27.4 and I.O.P. 10.6.




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