HLD-063 (December 2010)                                      NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 10-3812
                                     ___________

                                TONY T. CLARK-BEY,
                                                Appellant
                                         v.

     UNITED STATES OF AMERICA; WARDEN RONNIE HOLT, USP Canaan
                ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                            (D.C. Civil No. 3-10-cv-01758)
                    District Judge: Honorable Richard P. Conaboy
                     ____________________________________

                 Submitted for Possible Summary Action Pursuant to
                      Third Circuit LAR 27.4 and I.O.P. 10.6
                                December 29, 2010
         Before: MCKEE, Chief Judge, ALDISERT and WEIS, Circuit Judges

                           (Opinion filed : January 26, 2011)
                                      _________

                                       OPINION
                                       _________

PER CURIAM.

             Tony Clark-Bey, proceeding pro se, appeals the order of the District Court

dismissing his petition under 28 U.S.C. § 2241. Because the appeal does not present a

substantial question, we will summarily affirm.
              In 2004, Clark-Bey was found guilty in the United States District Court for

the Central District of Illinois of one count of possessing with intent to distribute more

than fifty grams of cocaine base; because of prior convictions, he was sentenced to a

mandatory term of life imprisonment. On direct appeal, he challenged both his

conviction and life sentence, alleging inter alia that imposing a term of life “violate[d]

the Eighth Amendment and his Sixth Amendment right to a jury trial.” United States v.

Clark, 182 Fed. Appx. 540, 541 (7th Cir. 2006), cert denied, 549 U.S. 937 (2006). The

United States Court of Appeals for the Seventh Circuit affirmed the conviction and

sentence. Id. at 544.

              Following the Supreme Court’s denial of certiorari, Clark-Bey pursued

collateral relief by filing a motion under 28 U.S.C. § 2255 in the Central District of

Illinois, alleging ineffective assistance of counsel and again challenging his sentence as

unconstitutional. His motion was considered on the merits and denied. Clark v. United

States, No. 07-2185 , 2008 U.S. Dist. LEXIS 47769 (C.D. Ill. June 20, 2008). A

subsequent Motion to Reduce Sentence pursuant to 18 U.S.C. § 3582(c)(2) was similarly

unsuccessful. United States v. Clark, No. 03-CR-20057, 2010 U.S. Dist. LEXIS 64750

(C.D. Ill. June 30, 2010), aff’d, No. 10-2709, 2010 U.S. App. LEXIS 23899 (7th Cir.

Nov. 18, 2010).




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              Clark-Bey then filed a petition for a writ of habeas corpus under 28 U.S.C.

§ 2241 in the United States District Court for the Middle District of Pennsylvania 1,

attacking his life sentence as “illegal.” He argued that the relevant statutory enhancement

penalties for prior offenses do not contemplate state charges, which were erroneously

used to determine his offender status, and claimed that his sentence was “jurisdictionally

defective”; he further claimed to be “‘actually innocent’ of [his] sentence.” The District

Court dismissed the petition for lack of jurisdiction, holding that his claims were not

cognizable in a § 2241 action. Clark-Bey appealed.

              We have jurisdiction pursuant to 28 U.S.C. § 1291. We may summarily

affirm the District Court’s decision if the appeal does not present a substantial question.

See LAR 27.4; I.O.P. 10.6; United States v. Baptiste, 223 F.3d 188, 190 n.3 (3d Cir.

2000); Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999).

              A federal prisoner who challenges the validity of his conviction or sentence

must pursue collateral relief by filing a motion under 28 U.S.C. § 2255 in the district

court that imposed his sentence. See § 2255(a). A second or successive § 2255 motion

must first be authorized by “a panel of the appropriate court of appeals.” § 2255(h).

While alternative relief by way of application for writ of habeas corpus is contemplated



   1
    Clark-Bey is currently incarcerated in USP Canaan, located in Waymart,
   Pennsylvania, within the Middle District.
                                              3
by § 2255(e), such a remedy is available only if a § 2255 motion would be “inadequate or

ineffective to test the legality of [the] detention.” § 2255(e); see also Cradle v. United

States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). We have emphasized that this

“safety-valve” language in § 2255(e) is to be strictly construed, applying only in rare

circumstances, such as when a petitioner “had no earlier opportunity to challenge his

conviction for a crime that an intervening change in substantive law [negated].” See In re

Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997) (observing also that § 2255 is not

“inadequate or ineffective” merely because a “petitioner is unable to meet the stringent

gatekeeping requirements of the amended § 2255”).

              In dismissing Clark-Bey’s petition for lack of jurisdiction, the District

Court observed that he was “clearly challenging” the validity of his federal sentence,

which he must do “by following the requirements of § 2255. . . . [and] obtain[ing]

certification from the Seventh Circuit Court of Appeals.” Opinion 6. Moreover, Clark-

Bey did not show that he was within the Dorsainvil exception, and advanced an

unconvincing argument of actual innocence. Opinion 6–7.

              We are in full accord with the reasoning of the District Court. As the

appeal does not present a substantial issue, we will summarily affirm the District Court’s

order.




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