DLD-080                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 19-3115
                                       ___________

                                HAROLD FITZGERALD,
                                             Appellant

                                             v.

                   UNITED STATES DEPARTMENT OF JUSTICE;
                     FEDERAL BUREAU OF INVESTIGATION
                     ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 2-19-cv-01385)
                            District Judge: Joel H. Slomsky
                      ____________________________________

                   Submitted for Possible Summary Action Pursuant to
                       Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                    January 9, 2020

             Before: RESTREPO, PORTER and NYGAARD, Circuit Judges

                             (Opinion filed January 23, 2020)
                                       _________

                                        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.
       Harold Fitzgerald, Jr. appeals from the District Court’s order denying his petition

for writ of habeas corpus under 28 U.S.C. § 2241. For the reasons that follow, we will

summarily affirm.

       In 2010, the United States District Court for the District of Delaware convicted

Fitzgerald of four counts related to a drug conspiracy and money laundering, and he was

sentenced to 240 months in prison. His sentence was later reduced to 193 months. In

2012, this Court affirmed the judgment. See United States v. Fitzgerald, 496 F. App’x

175 (3d Cir. 2012). In 2013, Fitzgerald filed a 28 U.S.C. § 2255 motion in the District of

Delaware challenging his conviction and sentence based on several ineffective-

assistance-of-counsel claims. In 2016, the motion was denied, and, in 2017, this Court

denied Fitzgerald’s request for a certificate of appealability. See United States v.

Fitzgerald, 2017 WL 4842149 (3d Cir. Feb. 13, 2017); Fitzgerald v. United States, 2016

WL 5402177 (D. Del. Sept. 26, 2016).

       In April 2019, Fitzgerald, then confined in a federal prison in New Jersey, filed

this § 2241 petition in the United States District Court for the Eastern District of

Pennsylvania, challenging the sentence imposed by the sentencing court, i.e., the United

States District Court for the District of Delaware. Specifically, he claimed that the

sentencing court incorrectly determined his criminal history score by counting a 1994

state-court conviction that had been nolle prossed in the calculation.

       The government filed a motion to dismiss the § 2241 petition, arguing that the

District Court lacked jurisdiction to consider it. Fitzgerald filed a response to the motion



                                              2
to dismiss. The District Court granted the government’s motion, and dismissed the

§ 2241 petition for lack of jurisdiction.

       Fitzgerald appeals. We have jurisdiction under 28 U.S.C. § 1291.1 Our Clerk

advised the parties that we might act summarily to dispose of the appeal under Third Cir.

L.A.R. 27.4 and I.O.P. 10.6.

       We will summarily affirm the order of the District Court because no substantial

question is presented by this appeal, Third Circuit L.A.R. 27.4 and I.O.P. 10.6. A motion

under 28 U.S.C. § 2255, and not a habeas corpus petition under 28 U.S.C. § 2241,

generally is the exclusive means to challenge a federal sentence. See Okereke v. United

States, 307 F.3d 117, 120 (3d Cir. 2002) (“Motions pursuant to 28 U.S.C. § 2255 are the

presumptive means by which federal prisoners can challenge their convictions or

sentences[.]”). As noted, Fitzgerald already filed a § 2255 motion, which was denied by

the sentencing court. Therein, he did not raise the issue he has brought in his § 2241

petition.

       Section 2255(e) of title 28, also known as the “savings clause,” provides, however,

that an application for a writ of habeas corpus may proceed if “it . . . appears that the

remedy by [§ 2255] motion is inadequate or ineffective to test the legality of [a

prisoner’s] detention.” 28 U.S.C. § 2255(e). “Section 2255 is not inadequate or

ineffective merely because the sentencing court does not grant relief, the one-year statute



1
 A certificate of appealability is not required to appeal from the denial of a § 2241
petition. See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir. 2009).


                                              3
of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping

requirements of the amended § 2255.” Cradle v. United States ex rel. Miner, 290 F.3d

536, 539 (3d Cir. 2002) (per curiam). “It is the inefficacy of the remedy, not the personal

inability to utilize it, that is determinative.” Id. at 538.

       When a federal prisoner attacks the validity of his conviction, he may proceed

under § 2241 only if (1) he asserts a colorable claim of actual innocence on the theory

that “he is being detained for conduct that has subsequently been rendered non-criminal

by an intervening Supreme Court decision,” and (2) he is “otherwise barred from

challenging the legality of the conviction under § 2255.” Cordaro v. United States, 933

F.3d 232, 239 (3d Cir. 2019) (quoting Bruce v. Warden Lewisburg USP, 868 F.3d 170,

180 (3d Cir. 2017)).

       Fitzgerald’s claim does not meet this standard. Furthermore, although he argues

that his § 2241 petition could be construed as a petition for writ of mandamus directing

the Bureau of Prisons to recalculate his criminal history score, criminal history category,

and advisory sentencing guidelines range, those modifications could only be made by the

sentencing court, not the Bureau of Prisons. Accordingly, for the reasons explained

herein, the District Court lacked jurisdiction over Fitzgerald’s § 2241 petition and

properly dismissed the petition.




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