DLD-140                                               NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ____________

                                        No. 13-4050
                                       ____________

                              UNITED STATES OF AMERICA

                                              v.

                                    CARL GREEN,
                                                 Appellant.
                          __________________________________

                       On Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                            (D.C. Civ. No. 2-06-cr-00075-001)
                         District Judge: Honorable Stewart Dalzell
                         __________________________________

                         Submitted for Possible or Summary Action
                     Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     December 19, 2013

          Before: SMITH, HARDIMAN and VAN ANTWERPEN, Circuit Judges

                               (Opinion filed: January 9, 2014)
                                       ____________

                                         OPINION
                                       ____________


PER CURIAM

      Appellant Carl Green appeals from an order of the District Court denying his motion to

dismiss the indictment. For the reasons that follow, we will summarily affirm.
         Green, a federal prisoner, pleaded guilty in August, 2006 to an unarmed bank robbery in

violation of 18 U.S.C. § 2113(a) in the United States District Court for the Eastern District of

Pennsylvania.1 He was sentenced in November, 2006 as a career offender to a term of

imprisonment of 168 months and three years of supervised release. Green filed neither a direct

appeal nor a timely collateral attack under 28 U.S.C. § 2255.

         On August 19, 2013, Green filed a motion to dismiss the indictment, asking the District

Court to use its supervisory power to afford him relief. Green alleged that the indictment was

“plagued with prosecutorial misconduct, and peppered with deprivations” of the Fifth and

Tenth Amendments. More specifically, Green alleged that Congress exceeded its power when

it criminalized bank robbery, which historically had been the province of the states. He noted

that the sentences imposed by state courts were much more lenient than those imposed by

federal courts. His Tenth Amendment challenge was based on Bond v. United States, 131 S.

Ct. 2355 (2011).

         In denying the motion to dismiss the indictment, the District Court reasoned that

Green’s allegations of prosecutorial misconduct did not rise to the level of a Fifth Amendment

violation because that amendment requires only that an indictment be returned by a legally

constituted and unbiased grand jury, citing United States v. Vitillo, 490 F.3d 314, 320 (3d Cir.

2007), and United States ex rel. Almeida v. Rundle, 383 F.2d 421, 424 (3d Cir. 1967)

(indictment may not be challenged on ground that evidence presented to grand jury was either

inadequate or incompetent). Turning to Green’s Tenth Amendment claim, the District Court

noted Bond’s holding that a criminal defendant has standing to pursue a Tenth Amendment

1
    The record reflects that Green gave a full written confession after waiving his Miranda rights.
                                                  2
challenge to Government action taken “in excess of the authority that federalism defines,” id.

at 2363-2364, but reasoned that nothing in Bond disturbed the longstanding view that the reach

of the federal government into crimes against banking and savings institutions under the bank

robbery statute did not exceed its power under the Commerce Clause, see United States v.

Spinello, 265 F.3d 150, 156-58 (3d Cir. 2001). Last, the District Court summarily rejected

Green’s vaguely asserted Ninth Amendment claim, and the court determined that Green’s

motion to dismiss the indictment was time-barred under 28 U.S.C. § 2255, because even if it

was construed as depending on a new right recognized by the Supreme Court in Bond, Green

did not file it within one year, see id. at § 2255(f)(3), of June 16, 2011, the date Bond was

decided.

       Green appeals. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). We give

Green the benefit of the doubt with respect to the District Court’s jurisdiction, see 28 U.S.C. §

2241, insofar as he alleged that he is actually innocent of violating 18 U.S.C. § 2113(a) on the

basis of Bond. We exercise plenary review over the dismissal of his petition. See Vega v.

United States, 493 F.3d 310, 314 (3d Cir. 2007).

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

question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. Green alleged in

the main that he is actually innocent because his conduct did not affect interstate commerce

and because criminalizing “purely local conduct” exceeds Congress’ power under the Tenth

Amendment. The claim that bank robbery is purely local conduct is new and based on the

Supreme Court’s decision in Bond, which held that a criminal defendant has standing to pursue



                                               3
a Tenth Amendment challenge to the statute under which he was charged as an unjustifiable

expansion of federal law enforcement into a state-regulated domain.

       A federal prisoner must challenge the validity of his conviction and sentence through a

motion to vacate sentence pursuant to 28 U.S.C. § 2255. See Davis v. United States, 417 U.S.

333, 343 (1974). Section 2255 expressly prohibits a district court from considering a challenge

to a prisoner’s federal sentence under § 2241 unless the remedy under § 2255 is “inadequate or

ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e); see also Cradle v. United

States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002); In re: Dorsainvil, 119 F.3d 245, 251 (3d

Cir.1997). A motion under § 2255 is not “inadequate or ineffective” simply because the

petitioner cannot meet the time requirements for a motion to vacate sentence. See Cradle, 290

F.3d at 538-39 (Section 2255 not inadequate or ineffective merely because one-year statute of

limitation has expired). See also 28 U.S.C. § 2255(f)(3) (motion to vacate sentence must be

filed within one year of date on which judgment becomes final or within one year of the date

on which the right asserted was initially recognized by Supreme Court and made retroactive to

cases on collateral review).

       We have held that § 2255 is “inadequate or ineffective” to test the legality of a

conviction where a petitioner “is being detained for conduct that has subsequently been

rendered non-criminal by an intervening Supreme Court decision,” and where the petitioner is

otherwise barred from filing a § 2255 motion. Dorsainvil, 119 F.3d at 252. In such a case, a

petitioner may seek habeas corpus relief under 28 U.S.C. § 2241. Id. As explained by the

District Court, Bond did not render non-criminal the conduct for which Green was convicted –



                                                4
robbery of a federally insured bank – and so he cannot proceed under § 2241.2 In his summary

action response, Green argues that National Federation of Independent Business v. Sebelius,

132 S. Ct. 2566 (2012), wherein the Supreme Court held that the individual mandate of the

Affordable Care Act exceeded Congress’ power under the Commerce Clause, further supports

his argument that the bank robbery statute is now invalid. It does not.

       For the foregoing reasons, we will summarily affirm the order of the District Court

denying Green’s motion to dismiss the indictment.




2
  The defendant in Bond placed caustic substances on objects her rival was likely to touch, and
the victim suffered a minor burn on her hand. The defendant was indicted on two counts of
violating 18 U.S.C. § 229, which forbids knowing possession or use of any chemical that can
cause harm to humans. The statute was enacted as part of the Chemical Weapons Convention
Implementation Act of 1998, which implemented provisions of the Convention on the
Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and
on their Destruction, a treaty the United States ratified in 1997. See Bond, 131 S. Ct. at 2360.
The defendant moved to dismiss the § 229 charges, contending that the statute was beyond
Congress’ constitutional authority to enact. The Supreme Court held that Bond had prudential
standing to challenge the statute of conviction as violating the Tenth Amendment.
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