                                         PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                    ___________

                        No. 14-3902
                        ___________

                   BARKLEY GARDNER,

                                       Appellant

                              v.

                WARDEN LEWISBURG USP
                     __________

     On Appeal from the United States District Court
         for the Middle District of Pennsylvania
               (D.C. No. 03-14-cv-00858)
      District Judge: Honorable James M. Munley
                      ___________

         Submitted Under Third Circuit L.A.R. 34.1(a)
                    September 19, 2016

     Before: MCKEE,* HARDIMAN, and RENDELL,
                   Circuit Judges.


     *
        Chief Judge Theodore A. McKee’s term as Chief
Judge ended on September 30, 2016.
              (Opinion Filed: January 4, 2017)

Edward J. Rymsza, III
Miele & Rymsza, P.C.
36 West Fourth Street
Williamsport, PA 17701
      Counsel for Appellant

Carlo D. Marchioli
Kate L. Mershimer
Office of United States Attorney
228 Walnut Street, Suite 220
P.O. Box 11754
Harrisburg, PA 17108
       Counsel for Appellee
                        ____________

                OPINION OF THE COURT
                     ____________

HARDIMAN, Circuit Judge.

       A federal prisoner who wishes to challenge the
constitutionality of his incarceration may file a petition for
writ of habeas corpus under 28 U.S.C. § 2255. In the
exceptional circumstance when § 2255 is inadequate or
ineffective to do so, however, a petition may be filed under
the general habeas statute, 28 U.S.C. § 2241. In Okereke v.
United States, 307 F.3d 117, 120 (3d Cir. 2002), we held that
§ 2255 was adequate and effective to adjudicate a claim of
sentencing error under Apprendi v. New Jersey, 530 U.S. 466
(2000). The question this appeal presents is whether § 2255 is
an adequate and effective means to adjudicate a claim of




                              2
sentencing error under Alleyne v. United States, 133 S. Ct.
2151 (2013). We hold that it is.

                               I

        In 1996, Appellant Barkley Gardner and four others
were convicted on charges related to their involvement in a
drug conspiracy that operated in New York, Maryland, and
North Carolina. See United States v. Celestine, 43 F. App’x
586, 589 (4th Cir. 2002) (affirming Gardner’s convictions).
Members of the conspiracy murdered a rival drug dealer,
Lateisha Beaman, by carjacking and kidnapping her, taking
her into the woods, and shooting her. Id. They also murdered
another defendant’s former girlfriend, Roneka Jackson, after
she tried to report their illegal activity. See id. at 589–90.

       A jury in North Carolina convicted Gardner of seven
federal crimes: (1) racketeering; (2) racketeering conspiracy;
(3) conspiracy to distribute a controlled substance; (4)
conspiracy to commit murder; (5) murder in aid of
racketeering, aiding and abetting; (6) carjacking resulting in
death; and (7) using and carrying a firearm during and in
relation to a crime of violence causing death, aiding and
abetting. Gardner was sentenced to imprisonment for “his
natural life on each of Counts 1, 2, 3, 5, 6 and 7, and 120
months [on] Count 4, all to be served concurrently,” and a
special assessment totaling $350. App. 111A–12A.

       The Court of Appeals for the Fourth Circuit affirmed
Gardner’s convictions. Celestine, 43 F. App’x at 598, cert.
denied, Gardner v. United States, 537 U.S. 1095 (2002).
After his direct appeal became final, Gardner filed a motion
in the United States District Court for the Eastern District of
North Carolina under 28 U.S.C. § 2255 seeking to vacate or




                              3
modify his sentence based on ineffective assistance of
counsel. The district court denied Gardner’s motion, and the
Fourth Circuit again affirmed. United States v. Gardner, 231
F. App’x 284 (4th Cir. 2007).

       In May 2014, Gardner filed a petition for writ of
habeas corpus under 28 U.S.C. § 2241 in the Middle District
of Pennsylvania—where he remains incarcerated—claiming
he is being held in violation of the United States Constitution
in light of the Supreme Court’s intervening decisions in
Alleyne, Burrage v. United States, 134 S. Ct. 881 (2014), and
Rosemond v. United States, 134 S. Ct. 1240 (2014). In
Alleyne, the Supreme Court mirrored its opinion in Apprendi,
and held that “[a]ny fact that, by law, increases the
[mandatory minimum] penalty for a crime is an ‘element’ that
must be submitted to the jury and found beyond a reasonable
doubt.” Alleyne, 133 S. Ct. at 2155 (citation omitted).
Burrage confirmed this rule by applying it to a specific
penalty enhancement. 134 S. Ct. at 887. And Rosemond
changed the standard for aiding and abetting under 18 U.S.C.
§ 924(c). 134 S. Ct. at 1243.

       On July 7, 2014, the Magistrate Judge recommended
dismissing Gardner’s § 2241 petition for lack of jurisdiction
because Gardner’s claims should have been raised in a § 2255
motion filed in the court that sentenced him: the United States
District Court for the Eastern District of North Carolina. Two
months later, the District Court adopted the Magistrate
Judge’s report and recommendation denying Gardner’s
§ 2241 petition, dismissing his claims under Alleyne on
jurisdictional grounds. Gardner argued that because facts that
increased his mandatory minimum penalty were not found by
the jury beyond a reasonable doubt, “Alleyne invalidates his
concurrent life sentences.” Gardner v. Thomas, 2014 WL



                              4
4351534, at *3 (M.D. Pa. Sept. 2, 2014). The District Court
held that it lacked jurisdiction to decide this claim because
“the presumptive means for federal prisoners to challenge
their convictions or sentences is a section 2255 motion, not a
section 2241 petition,” and “a section 2241 petition is limited
to circumstances where the remedy available under section
2255 is inadequate or ineffective to test the legality of
detention.” Id. at *2 (citing 28 U.S.C. § 2255(e) and Okereke,
307 F.3d at 120). Noting that Alleyne simply mirrored the rule
announced in Apprendi, and that Okereke held that § 2255
motions are adequate and effective means to adjudicate
claims of Apprendi error, the District Court concluded: “it
follows that Alleyne claims must also be brought under
section 2255.” Id. at *3. The Court denied Gardner’s motion
and he filed this appeal.

                              II

       The District Court had the power to ascertain its own
jurisdiction, Arbaugh v. Y & H Corp., 546 U.S. 500, 514
(2006), and we have appellate jurisdiction under 28 U.S.C.
§§ 1291 and 2253(a). We exercise plenary review over the
District Court’s order denying Gardner’s petition for lack of
jurisdiction, and we may affirm the District Court’s order “for
any reason supported by the record.” Cardona v. Bledsoe, 681
F.3d 533, 535 & n.4 (3d Cir. 2012) (citation omitted).

                              III

       We begin by considering whether Gardner’s claims of
error under Alleyne qualify for the § 2255 exception that
would permit review of his claims in a § 2241 petition.




                              5
                              A

        Gardner claims he was unlawfully sentenced to life in
prison for offenses under each of Counts 1–3. These
sentences were improper, Gardner argues, because not all
facts that increase the mandatory minimum were submitted to
the jury as elements of the crime, as the Supreme Court later
required in Alleyne, 133 S. Ct. at 2155. But in order for this
argument to be considered, Gardner had to establish that the
District Court had jurisdiction to hear his claim under 28
U.S.C. § 2241. For the reasons that follow, we agree with the
District Court that it lacked jurisdiction.

       The Supreme Court in Apprendi held that “any fact
that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” 530 U.S. at 490. We held in
Okereke that despite this new requirement, prisoners
sentenced prior to and in violation of the Apprendi rule may
not bring habeas petitions under § 2241. Okereke, 307 F.3d at
120–21. Because “Apprendi dealt with sentencing and did not
render . . . the crime for which [the defendant] was
convicted[] not criminal,” we determined that § 2255 motions
are adequate and effective means to adjudicate claims of
Apprendi error in prior sentences. Id.

       Alleyne extended the logic of Apprendi to facts
affecting mandatory minimums for criminal sentences.
Alleyne, 133 S. Ct. at 2155. Both cases regulate sentencing
procedure and neither makes previously criminal conduct
noncriminal. For the same reason that Okereke held Apprendi
claims could not be raised in § 2241 motions—Apprendi did
not render previously criminal conduct noncriminal, Okereke,




                              6
307 F.3d at 120—we likewise hold that Alleyne claims cannot
be raised under § 2241.

        This conclusion is consistent with § 2241’s limited
scope. A court may not entertain a habeas petition under
§ 2241 made by a federal prisoner “in custody under sentence
of a [federal] court . . . unless it also appears that the remedy
by motion [under § 2255] is inadequate or ineffective to test
the legality of [the prisoner’s] detention.” 28 U.S.C. § 2255.
Section 2255, in turn, imposes several restrictions: motions
must be raised in the trial court that sentenced the prisoner
and within one year of sentencing, and the opportunity for
successive filing is limited. See, e.g., 28 U.S.C. §§ 2255(e),
(f), (h). Despite these stringent requirements, we have held
that § 2255 is not inadequate or ineffective “merely because
[a] petitioner is unable to meet [them].” In re Dorsainvil, 119
F.3d 245, 251 (3d Cir. 1997). Rather, the petitioner must
show something more to establish inadequacy or
ineffectiveness.

       There are situations where the remedy under § 2255 is
actually “inadequate or ineffective,” but they are rare. For
example, in Dorsainvil we held that § 2255 relief was
unavailable when a prisoner “had no earlier opportunity to
challenge his conviction for a crime that an intervening
change in substantive law may negate” and which “the
government concedes . . . should be applied retroactively.”
Dorsainvil, 119 F.3d at 251. Such a situation that warrants
§ 2241 jurisdiction will indeed be “unusual.” Id.; see also id.
at 252–53 (Stapleton, J., concurring) (summarizing the Court
as holding § 2255 inadequate “in a case where the
gatekeeping provisions bar a successive petitioner who can
allege actual innocence of the crime of which he was




                               7
convicted and who, at the time of his earlier petition(s), could
not demonstrate that innocence” (emphasis added)).

       We emphasized in Okereke that Dorsainvil’s
interpretation of § 2255 provides only a “narrow exception”
to its “presumptive” exclusivity. Okereke, 307 F.3d at 120.
We also noted that unlike the change in substantive law
leading to the exception in Dorsainvil, issues that might arise
regarding sentencing did not make § 2255 inadequate or
ineffective. Id. at 120–21. The prisoner’s inability to satisfy
§ 2255’s gatekeeping requirements in Okereke did not alter
our analysis that the district court lacked jurisdiction to
consider a § 2241 petition. Id.

       Like Apprendi, Alleyne did not establish a rule that
made prior criminal conduct noncriminal. We have
previously noted that Alleyne is essentially an extension of
Apprendi. See United States v. Burnett, 773 F.3d 122, 136 (3d
Cir. 2014). Therefore, under the logic of Okereke, 307 F.3d at
120, Gardner’s Alleyne challenge cannot be raised in a § 2241
petition based on Dorsainvil-like claims of actual innocence.

        Gardner responds by arguing that if Congress had
intended to limit § 2255’s savings clause only to “actual
innocence” claims, the legislature would have drafted the
statute differently. This argument misperceives the animating
principle of our decision in Dorsainvil. There, we recognized
that § 2255’s savings clause provides a safety valve for actual
innocence, but without short-circuiting § 2255’s gatekeeping
requirements. See Dorsainvil, 119 F.3d at 251. Adopting
Gardner’s approach—under which all sentencing issues based
on new Supreme Court decisions could be raised via § 2241
petitions—would accomplish just that. The exception would




                               8
swallow the rule that habeas claims presumptively must be
brought in § 2255 motions.

       And § 2255 already addresses the effect of an
intervening change to the scope of criminality by allowing
some successive motions. See 28 U.S.C. §§ 2255(f)(3), (h)(2).
Gardner’s approach vitiates these statutory provisions without
explaining why the statutory scheme, as written, would not
have allowed him to adequately raise his Alleyne claim in a
§ 2255 motion. In sum, because “§ 2255 [i]s not inadequate
or ineffective for [a prisoner] to raise his Apprendi
argument,” Okereke, 307 F.3d at 121, it is not inadequate or
ineffective to raise an Alleyne argument either.

                              B

       Because upholding Gardner’s convictions on the
counts he has challenged under Alleyne will result in
affirming three of his concurrent life sentences, we need not
address the merits of his challenge under Rosemond in light
of the concurrent sentence doctrine. See United States v.
McKie, 112 F.3d 626, 628 n.4 (3d Cir. 1997).

       Our rejection of Gardner’s Alleyne claim means that
Counts 1–3 will be unaffected by his § 2241 petition. His
additional claim under Rosemond—based on a broad reading
of that decision’s holding on which we won’t pass
judgment—would at most affect Counts 5–7. Accordingly,
our review of the Rosemond claim cannot alter the term of
Gardner’s imprisonment. Thus, under the concurrent sentence
doctrine, we would decline to do so even if his Rosemond
claim were persuasive. See United States v. Ross, 801 F.3d
374, 381 (3d Cir. 2015); Jones v. Zimmerman, 805 F.2d 1125,
1128 (3d Cir. 1986).




                              9
       Gardner argues that his special assessment ($50 per
felony, or $350 total) means that his sentences are not truly
concurrent in light of Ray v. United States, 481 U.S. 736, 737
(1987) (per curiam). That argument has been foreclosed by
our decision in Ross. In that case, we held that because
collateral attacks can challenge only a prisoner’s custody,
special assessments are not reviewable in habeas corpus
proceedings. See Ross, 801 F.3d at 381–82. Ross leaves some
room to argue that other “adverse collateral consequences” of
multiple convictions may rise to the level of “custody,” id. at
382–83, but Gardner identifies no such consequences in his
case, even as he emphasizes this exception to the concurrent
sentencing doctrine. Although the range of adverse collateral
consequences is quite broad, id., Gardner cannot show that
any rise to the level of “custody” in this case given his other
life sentences. Accordingly, we invoke the concurrent
sentence doctrine and decline to address whether Rosemond
undermines Gardner’s aiding and abetting convictions.

                              IV

       For the reasons stated, we will affirm the District
Court’s order denying Gardner’s § 2241 habeas petition for
lack of jurisdiction.




                              10
