GLD-124                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 11-4634
                                      ___________

                                    KEVIN GREEN,
                                             Appellant

                                            v.

                                 MR. BLEDSOE
                      ____________________________________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                               (D.C. Civil No. 11-cv-02320)
                    District Judge: Honorable Christopher C. Conner
                      ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   February 24, 2012

       Before: FUENTES, GREENAWAY, JR. and NYGAARD, Circuit Judges

                             (Opinion filed: March 7, 2012)
                                      _________

                                       OPINION
                                       _________

PER CURIAM

      Pro se appellant Kevin Green appeals the United States District Court for the

Middle District of Pennsylvania‟s order dismissing his habeas petition filed under 28

U.S.C. § 2241. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and
we exercise plenary review over the District Court‟s legal conclusions and apply a clearly

erroneous standard to its factual findings. See Cradle v. United States ex rel. Miner, 

, 538 (3d Cir. 2002). Because this appeal does not present a substantial question,

we will summarily affirm the District Court‟s judgment. See 3d Cir. L.A.R. 27.4; 3d Cir.

I.O.P. 10.6.

       Green is a prisoner currently incarcerated in the United States Penitentiary in

Lewisburg, Pennsylvania. In July 2006, he pleaded guilty in the United States District

Court for the District of Minnesota to one count of conspiring to distribute and possessing

with intent to distribute more than 100 grams of heroin, and on November 20, 2007, he

was sentenced to 124 months‟ imprisonment. See D. Minn. Cr. A. No. 06-0050. Green

was apparently sentenced as a career offender, see U.S.S.G. § 4B1.1(a), a classification

that was based, in part, on Green‟s prior Minnesota state conviction for fleeing a police

officer in a motor vehicle. Green did not file a direct appeal challenging his conviction or

sentence.

       In February 2008, Green filed a motion under 28 U.S.C. § 2255, raising several

ineffective-assistance-of-counsel claims. The District Court denied the motion in January

2009, and the Eighth Circuit denied Green‟s motion for a certificate of appealability in

May 2009.

       In November 2009, Green filed a petition for habeas corpus under 28 U.S.C.

§ 2241 in the United States District Court for the Southern District of Illinois. Green

argued that, because the Eighth Circuit had recently held that “Minnesota‟s crime of

fleeing a peace officer in a motor vehicle does not constitute a „crime of violence‟ under


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the Sentencing Guidelines,” United States v. Tyler, 

, 726 (8th Cir. 2009),1

he was “actually innocent” of the career-offender designation. The District Court

dismissed Green‟s petition, holding that the remedy provided by 28 U.S.C. § 2255 was

not inadequate or ineffective, and as a consequence, Green could not proceed under §

2241. Green appealed to the Seventh Circuit, which ultimately dismissed the appeal due

to Green‟s failure to pay the docketing fee.

       In December 2011, Green filed a § 2241 petition in the United States District

Court for the Middle District of Pennsylvania. He again claimed that, based on the

Eighth Circuit‟s decision in Tyler, he was “actually innocent of the career offender

enhancement.” The District Court dismissed the petition, holding that it was not required

to entertain a claim that had already been rejected by another district court, see 28 U.S.C.

§ 2244(a), and that Green had not obtained this Court‟s permission to file a successive

habeas petition, § 2244(b)(3)(A). Green then filed a timely notice of appeal to this Court;

he has also asked the Court to appoint counsel.

       We agree with the District Court‟s disposition of this case. Apart from whether

Green‟s petition was barred by 28 U.S.C. § 2244(a), it is apparent that his claim is not

viable under § 2241. We will therefore affirm the District Court‟s decision on this basis.

See Brightwell v. Lehman, 

, 191 (3d Cir. 2011) (noting that a federal

appellate court may affirm on any ground supported by the record). “Motions pursuant to

28 U.S.C. § 2255 are the presumptive means by which federal prisoners can challenge

1
  In Sykes v. United States, 

, 2270 (2011), the Supreme Court held that
the Indiana state offense of fleeing from a law-enforcement officer qualifies as a violent
felony. For purposes of this appeal, we need not decide whether Sykes abrogated Tyler.

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their convictions or sentences[.]” Okereke v. United States, 

, 120 (3d Cir.

2002). However, a federal prisoner can seek relief under 28 U.S.C. § 2241 if the remedy

provided by 28 U.S.C. § 2255 is “inadequate or ineffective” to test the legality of his or

her detention. 

. This occurs “only where the petitioner

demonstrates that some limitation of scope or procedure would prevent a § 2255

proceeding from affording him a full hearing and adjudication of his . . . claims.” 

This exception is extremely narrow and applies in only rare circumstances. See,

e.g., In re Dorsainvil, 

, 251-52 (3d Cir. 1997) (applying exception where an

intervening change in the law decriminalized the conduct underlying the petitioner‟s

conviction).

       Green asserts that he is innocent of being a career offender, and that, therefore, his

claim is properly brought under § 2241. He is mistaken. Dorsainvil allows relief under

§ 2241 only when a subsequent statutory interpretation renders a petitioner‟s conduct no

longer criminal. 

Green makes no allegation that he is actually innocent of

the crime for which he was convicted; he asserts only that his sentence was improper.

The Dorsainvil exception is therefore inapplicable, and relief under § 2241 is not

available. See 

(holding that a petitioner could not proceed

under § 2241 because his argument was based on Apprendi v. New Jersey, 

(2000), which “dealt with sentencing and did not render conspiracy to import heroin, the

crime for which Okereke was convicted, not criminal”).

       For these reasons, we conclude that this appeal presents “no substantial question,”

and will therefore summarily affirm the District Court‟s judgment. See 3d Cir. L.A.R.


                                              4
27.4; I.O.P. 10.6. We also deny Green‟s motions for appointment of counsel. See 18

U.S.C. § 3006A(a)(2).




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