GLD-240                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 13-1645
                                      ___________

                            EDWARD AARON HARVEY,
                                               Appellant
                                     v.

                          CHARLES MAIORANA, Warden
                      ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                             (D.C. Civil No. 13-cv-00024)
                      District Judge: Honorable Kim R. Gibson
                     ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     May 16, 2013

             Before: FUENTES, FISHER and VANASKIE, Circuit Judges

                             (Opinion filed: May 24, 2013)
                                      _________

                                       OPINION
                                       _________

PER CURIAM

      Edward Harvey appeals from an order of the United States District Court for the

Western District of Pennsylvania, which denied his petition filed pursuant to 28 U.S.C.

§ 2241. As no substantial question is presented by this appeal, we will summarily affirm,

although we make a minor modification to the terms of the Court’s judgment.
       In 2007, Harvey pled guilty to offenses of advertising, transporting, and

possessing child pornography. See United States v. Harvey, N.D. Cal. 05-cr-00373. In

2010, Harvey filed a number of motions in the trial court, including a motion pursuant to

28 U.S.C. § 2255. The motions were all denied, the United States Court of Appeals for

the Ninth Circuit denied a certificate of appealability, and the United States Supreme

Court denied Harvey’s petitions for a writ of certiorari and for rehearing. See C.A. No.

11-15511, Supreme Court No. 12-5114.

       Soon thereafter, Harvey filed a petition under 28 U.S.C. § 2241 in the Western

District of Pennsylvania, arguing that the federal trial court lacked jurisdiction to convict

and sentence him because Congress lacked the authority to enact criminal laws

punishable as felonies. The Magistrate Judge’s Report and Recommendation, adopted by

the District Court, properly informed Harvey that a motion pursuant to 28 U.S.C. § 2255

is the exclusive means for collaterally attacking a federal conviction, absent the rare

situation where a motion to vacate would be inadequate or ineffective because the

conduct for which the movant was convicted is no longer criminal, due to an intervening

change in the law. See, e.g., In re Dorsainvil, 

, 251 (3d Cir. 1997). As the

District Court explained, § 2255 is not inadequate or ineffective simply because the

sentencing court did not grant relief when he raised his jurisdictional arguments in his

§ 2255 motion. Id.; Cradle v. U.S. ex rel. Miner, 

, 539 (3d Cir. 2002).

       Harvey argues here, as he did in the District Court, that he must be afforded an

opportunity to raise his claims in a § 2241 petition because he has never had a hearing on

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his claim. Harvey misunderstands the savings clause of § 2255: “[a] § 2255 motion is

inadequate or ineffective 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 wrongful detention claim.” Cradle, 290 F.3d at 538. Harvey was

not given a hearing in his § 2255 proceeding because the trial court dismissed his motion,

finding that Harvey “fail[ed] to offer any facts justifying relief,” not because § 2255 in

some way prevented a hearing. See United States v. Harvey, N.D. Cal. 05-cr-00373,

docket #126; see also Rules 4(b) and 8 of the Rules Governing Section 2255 Proceedings

for the United States District Courts.

       Because Harvey’s filing in the District Court failed to satisfy § 2255’s escape

clause, the District Court lacked authority under § 2241 to consider the petition. Its “only

option [was] to dismiss the petition or transfer it to the court of appeals pursuant to 28

U.S.C. § 1631.” Robinson v. Johnson, 

, 139 (3d Cir. 2002). For the reasons

given, we will affirm the judgment of the District Court, but we modify the judgment to

dismiss, rather than deny, Harvey’s petition.1




       1
        Harvey’s motion requesting waiver of all filing/docketing fees is denied as
unnecessary, as no fees are assessed for a habeas Appellant proceeding in forma pauperis.
Santana v. United States, 

, 756 (3d Cir. 1996).


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