                                                   NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ____________

                        No. 01-4318
                       ____________

             UNITED STATES OF AMERICA

                               v.

                    JOHN C. KENNEY,

                             Appellant

                       ____________

       On Appeal from the United States District Court
           for the Middle District of Pennsylvania
                   (D.C. No. 99-cr-00280)
        District Judge: Honorable James F. McClure
                        ____________

         Submitted Under Third Circuit LAR 34.1(a)
                      April 2, 2010

Before: HARDIMAN, GREENBERG and ROTH, Circuit Judges.

                  (Filed: August 20, 2010)


                       ____________

                OPINION OF THE COURT
                     ____________
HARDIMAN, Circuit Judge.

       John Charles Kenney filed a motion to recall the mandate that this Court issued on

November 29, 2002, based on a change in the law. Although Kenney correctly notes that

the law has changed, he is not entitled to a recall of the mandate. Accordingly, we will

deny the motion.

                                               I.

       Because we write for the parties, we recount only the essential facts and procedural

history. In 2001, a jury found Kenney guilty of possession of a weapon by an inmate in

violation of 18 U.S.C. § 1791(a)(2). At sentencing, the District Court classified Kenney as

a career offender after it determined that his crime of conviction constituted a crime of

violence under § 4B1.2(a) of the United States Sentencing Guidelines (USSG). This

designation resulted in an advisory Guidelines imprisonment range of 41 to 51 months. The

District Court sentenced Kenney to 41 months imprisonment, to be served consecutively

with Kenney’s ongoing sentence.

       Kenney appealed, claiming the District Court erred in treating him as a career

offender because his conviction for violating 18 U.S.C. § 1791(a)(2) was not a crime of

violence. We affirmed because “possession of a weapon in prison inherently, and

accordingly by its nature, presents a serious potential risk of physical injury to other persons

in prison.” United States v. Kenney 310 F.3d 135, 137 (3d Cir. 2002) (internal quotation

marks and citations omitted).


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        In 2003 Kenney filed a federal habeas petition. The District Court denied the

petition in 2005 and Kenney did not appeal that decision to this Court. In 2008, however,

the Supreme Court refined the meaning of the phrase “crime of violence” under the Armed

Career Criminal Act, which contains a provision identical to USSG § 4B1.2(a). Begay v.

United States, 553 U.S. 137 (2008). Following the Supreme Court’s decision in Begay, we

held that a conviction under 18 U.S.C. § 1791(a)(2) is not a crime of violence and that

Kenney is no longer good law. United States v. Polk, 577 F.3d 515, 520 (3d Cir. 2009). A

few months later, Kenney filed a motion to recall the mandate that issued on November 29,

2002.

                                               II.

        We have the “inherent power” to recall the mandate, but that “power can be

exercised only in extraordinary circumstances.” Calderon v. Thompson, 523 U.S. 538,

549-50 (1998). In addition to the general limits on recalling the mandate, we are also bound

by “the statutory and jurisprudential limits applicable in habeas corpus cases.” Id. at 553.

        We regard Kenney’s motion to recall the mandate “as a second or successive

application for purposes of [28 U.S.C.] § 2244(b)” because “[o]therwise, petitioners could

evade the bar against relitigation of claims presented in a prior application, § 2244(b)(1), or

the bar against litigation of claims not presented in a prior application, § 2244(b)(2).”

Calderon, 523 U.S. at 553.1 Although AEDPA did not apply in Calderon because the
        1
       We determine whether a petition is “second or successive” by looking at “the
judgment challenged.” Magwood v. Patterson, __ U.S. __, 130 S.Ct. 2788, 2797 (2010).

                                               3
Ninth Circuit acted sua sponte based on the initial petition, the Supreme Court still held that

“a court of appeals must exercise its discretion in a manner consistent with the objects of

the statute.” Id. at 553-54.

       Here, AEDPA applies to Kenney’s motion because he has filed a successive

petition. As such, we are bound by §§ 2244 and 2255, as well as our precedents applying

them, in addition to the objects of the statute that bound the Court in Calderon. Under the

relevant statutory provisions, Kenney can file a successive petition only if: (1) he comes

forward with “newly discovered evidence that, if proven, and viewed in light of the

evidence as a whole, would be sufficient to establish by clear and convincing evidence that

no reasonable factfinder would have found [him] guilty of the offense” or (2) his claim is

based on “a new rule of constitutional law, made retroactive to cases on collateral review by

the Supreme Court, that was previously unavailable.” §§ 2255(h), 2244(b)(2). Even

construing Kenney’s pro se motion liberally, he cannot satisfy either requirement.

       Our precedents preclude Kenney from satisfying subsection 1 based on a new

statutory interpretation. In re Dorsainvil, 119 F.3d 245, 247 (3d Cir. 1997) (holding a new

statutory interpretation cannot constitute “newly discovered evidence” under § 2255(h)(1)).

Additionally, because Begay addressed a statutory, not a constitutional rule, Kenney’s


Kenney is challenging the same judgment he challenged in 2003, so his petition is “second
or successive.” In contrast, Magwood’s first petition was successful, so his later-filed
petition was not “second or successive” because it challenged “a new judgment for the first
time.” 130 S.Ct. at 2792.


                                              4
motion cannot satisfy subsection 2. Cf. United States v. Lloyd, 188 F.3d 184, 187 & n.8

(3d Cir. 1999) (holding an initial petition can be based on a new statutory right because the

language is “broader than the ‘new rule of constitutional law’ expressly required for second

or successive § 2255 motions”).

       Even assuming, arguendo, that § 2255 is “inadequate or ineffective to test the

legality of his detention,” Kenney’s motion is still insufficient under § 2241. § 2255; see

also Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538-39 (3d Cir. 2002). In Dorsainvil we

held that § 2241 can be used to challenge a conviction for a crime that was negated by an

intervening change in the law. 119 F.3d at 249. But such relief is available only in “rare

situations” where the crime of conviction was later deemed non-criminal. Okereke v.

United States, 307 F.3d 117, 120 (3d Cir. 2002). Section 2241 is not available for

intervening changes in the sentencing law. Id. For example, we did not allow Okereke to

proceed under § 2241 because his argument was based on “Apprendi [which] dealt with

sentencing and did not render . . . the crime for which Okereke was convicted, not

criminal.” Id. at 120.2

       2
         The Court of Appeals for the Eleventh Circuit has held that § 2241 applies even to
sentencing claims, and therefore allowed an inmate in a position substantially similar to
Kenney’s to proceed to the merits of his claim. Gilbert v. United States, __ F.3d __, 2010
WL 2473560 (11th Cir. 2010). We reject that holding as contrary to Okereke.
Furthermore, Gilbert reasoned that “[f]or federal sentencing purposes, the act of being a
career offender is essentially a separate offense, with separate elements (two felony
convictions; for violent felonies), which must be proved, for which separate and additional
punishment is provided.” 2010 WL 2473560, at *6. Therefore, it held that career offender
enhancements should be treated the same as enhancements from non-capital to capital

                                              5
       Finally, our habeas jurisprudence also allows us to hear a successive petition to

avoid a miscarriage of justice. See, e.g., Calderon, 523 U.S. at 558. This is a high bar

under which we will not revisit the merits unless the petitioner makes a “strong showing of

actual innocence.” Id. at 558-59. Importantly, “‘actual innocence’ means factual innocence,

not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998) (citing

Sawyer v. Whitley, 505 U.S. 333, 339 (1992)). Here, Kenney is claiming legal

insufficiency—that he did not meet the legal definition of a career offender—not actual

innocence. Therefore, he cannot satisfy the miscarriage of justice standard.

       For the foregoing reasons, we will deny the motion to recall the mandate.




sentences, which can be reviewed under § 2241. Id. The career offender enhancement is
not a separate offense, however. If it were, its elements would need to be proven to a jury
beyond a reasonable doubt. United States v. Howard, 599 F.3d 269, 271-72 (3d Cir. 2010)
(“The government bears the burden of establishing by a preponderance of the evidence,
prior convictions and career offender statuts.”). In contrast, the enhancement to a capital
sentence from a non-capital sentence must be proven to a jury beyond a reasonable doubt.
E.g., Sattazahn v. Pennsylvania, 537 U.S. 101, 106 (2003) (citing Bullington v. Missouri,
451 U.S. 430 (1981)).

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