ALD-220                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-4089
                                       ___________

                                  JERMAINE DIXON,
                                             Appellant

                                             v.

                           WARDEN OF FCI SCHUYLKILL
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                         (D.C. Civil Action No. 3:15-cv-00210)
                       District Judge: Honorable Edwin M. Kosik
                      ____________________________________

                   Submitted for Possible Summary Action Pursuant to
                        Third Circuit LAR 27.4 and I.O.P. 10.6
                                     April 14, 2016

          Before: AMBRO, SHWARTZ and NYGAARD, CIRCUIT JUDGES

                              (Opinion filed: April 19, 2016)

                                        _________

                                        OPINION*
                                        _________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

       Federal prisoner Jermaine Dixon, proceeding pro se, appeals from the orders of the

United States District Court for the Middle District of Pennsylvania (“the MDPA”)

dismissing his habeas petition and denying his related motion to reconsider. For the

reasons that follow, we will summarily affirm both orders.

                                             I.

       In 2001, Dixon pleaded guilty in the United States District Court for the Eastern

District of New York (“the EDNY”) to conspiracy to possess and distribute cocaine base

in violation of 21 U.S.C. §§ 841 and 846. The EDNY sentenced him to life in prison, but

the United States Court of Appeals for the Second Circuit (“the Second Circuit”) vacated

that judgment and remanded for resentencing. See United States v. Dixon, 175 F. App’x

384, 386 (2d Cir. 2006) (per curiam). Following remand, the EDNY resentenced him to

30 years in prison. The Second Circuit then affirmed that new judgment. See United

States v. Dixon, 262 F. App’x 300, 301-02 (2d Cir. 2008) (per curiam). Later, Dixon

filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.

§ 2255. The EDNY denied that motion in 2013, and Dixon did not appeal.

       In January 2015, Dixon filed a second § 2255 motion, seeking relief in light of

Burrage v. United States, 134 S. Ct. 881 (2014). In that case, the Supreme Court

explained, in pertinent part, that the “death results” sentencing enhancement in 21 U.S.C.

§ 841(b)(1) “is an element that must be submitted to the jury and found beyond a




                                              2
reasonable doubt.” Burrage, 134 S. Ct. at 887.1 Shortly after Dixon filed his new § 2255

motion, the EDNY transferred the matter to the Second Circuit because that motion had

not been authorized by the Second Circuit. Following transfer, the Second Circuit

directed Dixon to file, within 45 days, an application for leave to file that § 2255 motion.

It appears that Dixon never complied with this directive. In April 2015, the Second

Circuit dismissed the case in light of his noncompliance.

       While that Second Circuit case was pending, Dixon filed a pro se habeas petition

in the MDPA pursuant to 28 U.S.C. § 2241, again seeking relief under Burrage.2 On

February 27, 2015, the MDPA dismissed the petition for lack of jurisdiction, concluding

that a § 2255 motion was not an inadequate or ineffective means of challenging his

sentence. Dixon timely moved the MDPA to reconsider that decision. On December 8,

2015, the MDPA entered an order denying reconsideration. This timely appeal followed.

                                             II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a).3

We exercise plenary review over the MDPA’s dismissal of Dixon’s habeas petition, see

Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002) (per curiam), and

we review the MDPA’s denial of his motion to reconsider for abuse of discretion, see

1
  This enhancement increases the mandatory minimum and maximum sentences when
“death or serious bodily injury results from the use of [the controlled substance in
question].” 21 U.S.C. § 841(b)(1)(A)-(C).
2
  At the time the petition was filed, Dixon was incarcerated in the Federal Correctional
Institution-Schuylkill in Minersville, Pennsylvania.
3
  Dixon does not need a certificate of appealability to proceed with this appeal. See
United States v. Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000) (en banc), abrogated on
other grounds by Gonzalez v. Thaler, 132 S. Ct. 641 (2012).


                                              3
Howard Hess Dental Labs. Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 246 (3d Cir. 2010).

In reviewing each of these orders, we examine the MDPA’s legal conclusions under a de

novo standard and the MDPA’s factual findings under a clearly erroneous standard. See

Cradle, 290 F.3d at 538 (discussing review of order dismissing habeas petition); Howard

Hess Dental Labs. Inc., 602 F.3d at 246 (discussing review of order denying

reconsideration). We may take summary action if this appeal does not present a

substantial question. See 3d Cir. I.O.P. 10.6.

       As we have previously explained, “§ 2255 must be used to raise a challenge to the

validity of a [federal prisoner’s] conviction or sentence unless that section is ‘inadequate

or ineffective.’” Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002); see 28

U.S.C. § 2255(e). The “inadequate or ineffective” exception applies in rare

circumstances only, such as when a federal prisoner had “no prior opportunity to

challenge his conviction for a crime that an intervening change in substantive law could

negate with retroactive application.” Okereke, 307 F.3d at 120 (citing In re Dorsainvil,

119 F.3d 245, 251 (3d Cir. 1997)). A § 2255 motion is not inadequate or ineffective

merely because relief under § 2255 was previously denied or the federal prisoner cannot

meet the gatekeeping requirements for filing a second or successive § 2255 motion.

Cradle, 290 F.3d at 539. “It is the inefficacy of the remedy, not the personal inability to

use it, that is determinative.” Id. at 538.

       We agree with the MDPA that this case is not one of the rare instances where

§ 2255 would be inadequate or ineffective. The Supreme Court’s decision in Burrage did

not decriminalize the conduct for which Dixon was convicted. Rather, Burrage merely

                                              4
applied Apprendi v. New Jersey, 530 U.S. 466 (2000), and one of Apprendi’s progeny,

Alleyne v. United States, 133 S. Ct. 2151 (2013). See Burrage, 134 S. Ct. at 887.4 We

have previously held that a § 2255 motion is not an inadequate or ineffective vehicle for

raising an Apprendi-based argument. See Okereke, 307 F.3d at 120-21. Accordingly, the

MDPA correctly concluded that Dixon could not resort to § 2241 to raise his Burrage

claim, and the MDPA did not err in denying his motion to reconsider.

      Because this appeal does not present a substantial question, we will summarily

affirm the MDPA’s February 27, 2015, and December 8, 2015 orders.




4
 In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior conviction,
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. In
Alleyne, the Supreme Court held that the same rule applies to “facts that increase
mandatory minimum sentences.” 133 S. Ct. at 2163.
                                            5
