DLD-022                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-2433
                                       ___________

                                  JOSEPH MASSARO,
                                            Appellant

                                             v.

                            WARDEN LEWISBURG USP
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                             (D.C. Civil No. 3-17-cv-00180)
                      District Judge: Honorable James M. Munley
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2) or
      Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   October 26, 2017

              Before: JORDAN, SHWARTZ and KRAUSE, Circuit Judges


                            (Opinion filed: November 2, 2017)
                                        _________

                                        OPINION*
                                        _________
PER CURIAM

       Joseph Massaro, a federal prisoner proceeding pro se, appeals from the District


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Court’s order dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2241. Because this appeal does not present a substantial question, we will summarily

affirm. See Third Cir. L.A.R. 27.4; I.O.P. 10.6.

                                              I.

       In October 1993, a jury sitting in the United States District Court for the Southern

District of New York found Massaro guilty of several federal racketeering charges,

including murder in aid of racketeering. The District Court sentenced him to a term of

life imprisonment. Upon review, the United States Court of Appeals for the Second

Circuit affirmed the conviction and sentence. United States v. Massaro, 

(2d

Cir. 1995) (table). Massaro later filed a motion to vacate, set aside, or correct his

sentence pursuant to 28 U.S.C. § 2255 in the Southern District of New York, alleging that

his trial counsel had provided ineffective assistance. The District Court denied relief and

the Second Circuit affirmed.1 Massaro v. United States, 152 F. App’x 20 (2d Cir. 2005)

(not precedential). Massaro then sought leave to file a second or successive § 2255

motion, but the Second Circuit denied his request.

       In January 2017, Massaro filed the current § 2241 habeas petition in the Middle

District of Pennsylvania, where he is incarcerated. In his petition, Massaro claimed that

the sentencing court had committed two errors, and argued that, in light of the Supreme

1
  The District Court initially denied Massaro’s § 2255 motion on the ground that his
ineffectiveness claim was procedurally defaulted, and the Second Circuit affirmed. The
Supreme Court reversed, however, holding that Massaro could raise the claim via § 2255
even though he could have, but did not, raise it on direct appeal. Massaro v. United
States, 

, 504 (2003).
                                              2
Court’s decision in Alleyne v. United States, 

(2013), his mandatory life

sentence for murder is now unlawful. The District Court screened the petition pursuant

to Rule 4 of the Rules Governing Habeas Corpus Cases and concluded that Massaro’s

claims did not qualify for § 2255 “safety valve” relief via § 2241. Therefore, the District

Court dismissed the petition for lack of jurisdiction. This appeal followed.

                                             II.

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

We exercise plenary review over the District Court’s legal conclusions and apply a

clearly erroneous standard to its factual findings. See Ruggiano v. Reish, 

,

126-27 (3d Cir. 2002).

       A motion filed under § 2255 in the sentencing court is the presumptive means for

a federal prisoner to challenge the validity of a conviction or sentence. Okereke v. United

States, 

, 120 (3d Cir. 2002). A federal prisoner can seek relief under § 2241

only if the remedy provided by § 2255 “is inadequate or ineffective to test the legality of

his detention.” 28 U.S.C. § 2255(e); see Cradle v. United States ex rel. Miner, 

, 538 (3d Cir. 2002) (per curiam). We have applied this “safety valve” in the rare

situation in which a prisoner has not had a prior opportunity to challenge his conviction

for actions deemed to be non-criminal by an intervening change in law. 

. A § 2255 motion is not “inadequate or ineffective” merely because the

petitioner cannot meet the stringent gatekeeping requirements of § 2255(h), 

because the sentencing court has not granted relief, 

; see also In re

Dorsainvil, 

, 251 (3d Cir. 1997).

       The District Court correctly concluded that Massaro’s claims do not fit within the

narrow class for which a § 2255 motion would be inadequate or ineffective. Massaro

raises two challenges to his sentence: first, that the sentencing court relied on a version of

the United States Sentencing Guidelines that was not in effect when he committed his

crimes; and second, that the sentencing court applied the Guideline provision for

premeditated murder, U.S.S.G. § 2A1.1, when it should have relied on the provision for

non-premeditated murder, § 2A1.2. These claims do not rely on an intervening change in

the law that has rendered the conduct for which he was convicted non-criminal.

       Massaro also invokes Alleyne v. United States in an effort to fit his sentencing

claims within § 2255’s “safety valve.” In Alleyne, the Supreme Court held that any fact

that increases the penalty for a crime beyond the mandatory minimum sentence must be

submitted to the 

. Even assuming, arguendo, that Alleyne were

relevant to Massaro’s sentence, we have made clear that Alleyne-based claims cannot be

raised in a § 2241 petition. Gardner v. Warden Lewisburg USP, 

, 102-03 (3d

Cir. 2017) (holding that prisoners sentenced prior to Alleyne may not challenge their

sentences under § 2241 because Alleyne did not render the crimes for which they were

convicted non-criminal).2


2
  Massaro’s argument that Alleyne should be applied retroactively to cases on collateral
review in light of the Supreme Court’s recent decisions in Montgomery v. Louisiana, 136
                                              4
       For these reasons, we conclude that this appeal presents no substantial

question. Therefore, we will summarily affirm the District Court’s judgment. See

Third Circuit LAR 27.4 and I.O.P. 10.6.3




S. Ct. 718 (2016), and Welch v. United States, 

(2016), does not advance
his case. As discussed above, § 2241 is not a proper vehicle for Alleyne-based claims.
Moreover, Alleyne does not apply retroactively. United States v. Winkelman, 

, 136 (3d Cir. 2014).
3
 In his § 2241 petition, Massaro also argued that the Bureau of Prisons had improperly
denied him “compassionate early release.” Under 18 U.S.C. § 3582(c)(1)(A)(ii), a term
of imprisonment can be reduced for prisoners over the age of seventy who meet certain
conditions, but only upon “motion of the Director of the Bureau of Prisons.” Courts have
generally held that the BOP’s decision to file a motion under § 3582(c)(1)(A) or its
predecessor is not judicially reviewable, as the statute vests the decision solely with the
BOP. See, e.g., Fernandez v. United States, 

(11th Cir. 1991); Simmons v.
Christensen, 

(9th Cir. 1990); Turner v. United States Parole Comm’n, 

(7th Cir. 1987). In any event, the documentation that Massaro submitted in
support of his petition does not show that the BOP ever made a motion under
§ 3582(c)(1)(A)(ii).
                                             5