ALD-208                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 14-4418
                                      ____________

                          MATTHEW ROBERT DESCAMPS,
                                               Appellant

                                             v.

                            WARDEN LEWISBURG USP
                        __________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                               (D.C. Civ. No. 14-cv-01773)
                      District Judge: Honorable James M. Munley
                       __________________________________

                  Submitted for Possible Summary Action Pursuant to
                  Third Circuit LAR 27.4 and I.O.P. 10.6 and/or for a
               Certificate of Appealability Pursuant to 28 U.S.C. § 2253
                                     May 21, 2015
            Before: RENDELL, CHAGARES and SCIRICA, Circuit Judges

                              (Opinion filed: June 11, 2015)


                                   ________________

                                       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.
        Matthew Robert Descamps appeals from an order of the District Court

dismissing his petition for writ of habeas corpus, 28 U.S.C. § 2241, for lack of

jurisdiction. For the reasons that follow, we will summarily affirm.

       Descamps was convicted following a jury trial in the United States District Court

for the Eastern District of Washington of violating 18 U.S.C. § 922(g) (felon in

possession of firearm and ammunition). In January, 2008, he was sentenced pursuant to

the Armed Career Criminal Act (“ACCA”) to a term of imprisonment of 262 months.

The Court of Appeals for the Ninth Circuit affirmed, but the case was remanded for

resentencing by the United States Supreme Court, see Descamps v. United States, 133 S.

Ct. 2276 (2013) (petitioner’s California burglary conviction did not qualify as ACCA

predicate violent felony under categorical approach). Upon remand, the District Court

determined that Descamps qualified for a sentence under the ACCA based on a different

qualifying conviction and again sentenced Descamps to a term of imprisonment of 262

months, see United States v. Descamps, E.D. Wash. Crim. No. 05-cr-00104, Docket

Entry No. 579, filed 3/24/14 (Resentencing Judgment). Descamps has appealed this

sentence, and his appeal remains pending in the Ninth Circuit, see C.A. No. 14-30055.

       At issue here, Descamps, who is incarcerated at the United States Penitentiary in

Lewisburg, Pennsylvania, 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 Pennsylvania on

September 8, 2014, alleging that his new federal sentence is unlawful, and that he is

being detained without proper dental and medical treatment. In an order entered on

October 22, 2014, the District Court dismissed the petition for lack of jurisdiction.

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Descamps subsequently moved for reconsideration and requested to be permitted to

amend his § 2241 petition. In an order entered on November 6, 2014, the District Court

denied reconsideration and leave to amend.

       Descamps appeals. We have jurisdiction under 28 U.S.C. § 1291. Our Clerk

advised him that his appeal was subject to summary action pursuant to Third Circuit LAR

27.4 and I.O.P. 10.6, and that the Court would also consider whether a certificate of

appealability is required for the purpose of this appeal.1 Descamps has submitted a

summary action response in which he states that he has no teeth to eat with, and a motion

to amend his § 2241 petition, which we will treat as a supplemental summary action

response.

       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. To the

extent that Descamps challenged the adequacy of the dental and mental care he is

receiving, he is challenging the conditions of his confinement; his claims do not sound in

habeas corpus. See Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002). The proper

means for seeking relief for these claims is a civil rights action against the Bureau of

Prisons for damages or injunctive relief under Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971), after available administrative

remedies have been exhausted, 42 U.S.C. 1997e(a); Porter v. Nussle, 534 U.S. 516, 524




1
 A certificate of appealability is not required to appeal from the denial of § 2241 petition.
See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir. 2009).
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(2002). The District Court’s dismissal of Descamps’ § 2241 petition was without

prejudice to his right to file a proper civil rights action.

       To the extent that Descamps challenged his March, 2014 resentencing, a § 2241

petition in the district of confinement is, again, not the way to proceed. Descamps is still

in the process of pursuing his direct appeal in the Ninth Circuit Court of Appeals. The

remedy afforded by § 2241 is not an alternative to a direct appeal. Cf. Application of

Galante, 437 F.2d 1164, 1165 (3d Cir. 1971) (per curiam) (federal prisoner must first

exhaust his remedies in sentencing court and in court of appeals for circuit in which

sentencing court is located and then apply to Supreme Court for certiorari). Once that

direct appeal is concluded, if he is unsatisfied with the result, Descamps may pursue a

motion to vacate sentence, 28 U.S.C. § 2255, in the sentencing court, see Davis v. United

States, 417 U.S. 333, 345-46 (1974). A § 2241 petition filed in the district of

confinement, in contrast, will only be entertained where “a prisoner [ ] had no earlier

opportunity to challenge his conviction for a crime that an intervening change in

substantive law” negated. In re: Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997) (emphasis

added). In that Descamps’ direct appeal remains pending, and he has not yet pursued §

2255 relief in the sentencing court, he has not demonstrated that he must resort to a §

2241 petition.

       Accordingly, the District Court properly dismissed the § 2241 petition for lack of

jurisdiction, and properly denied leave to amend. A District Court has discretion to deny

leave when the amendment would be futile, as it would be here. Grayson v. Mayview

State Hospital, 293 F.3d 103, 113-14 (3d Cir. 2002).

                                                4
      For the foregoing reasons, we will summarily affirm the order of the District Court

dismissing Descamps’ § 2241 petition and denying his request for reconsideration and to

amend.




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