ALD-114                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-4098
                                       ___________

                                   JACK FERRANTI,
                                             Appellant

                                             v.

    WARDEN ALLENWOOD LSCI; UNITED STATES ATTORNEY GENERAL
               ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                         (D.C. Civil Action No. 3:16-cv-00866)
                       District Judge: Honorable Edwin M. Kosik
                      ____________________________________

                       Submitted for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   January 26, 2017
              Before: MCKEE, JORDAN and RESTREPO, Circuit Judges

                           (Opinion filed: February 15, 2017)
                                     ___________

                                        OPINION*
                                        _________

PER CURIAM

       Jack Ferranti, a federal prisoner incarcerated at LSCI-Allenwood, appeals pro se

from an order of the District Court dismissing his petition for a writ of habeas corpus


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
filed pursuant to 28 U.S.C. § 2241. For the reasons that follow, we will summarily affirm

the District Court’s judgment.

       In the United States District Court for the Eastern District of New York, a jury

convicted Ferranti of arson homicide, arson conspiracy, 16 counts of mail fraud, and

witness tampering, based on an insurance-fraud scheme in which Ferranti was involved

with causing a fire at his business that resulted in the death of a firefighter. The trial

judge concluded that the application of the sentencing guidelines and the ex post facto

clause called for a sentence just under Ferranti’s expected natural life. See United States

v. Ferranti, 

, 213-16 (E.D.N.Y. 1996). The trial judge took into account

54 days per year of good-time credit that Ferranti could be expected to receive in prison,

and then concluded that imposing a sentence of 435 months’ imprisonment would cause

Ferranti to serve an actual term of 371 months’ imprisonment—just under the 372

months of Ferranti’s remaining life expectancy. See 

Ferranti challenged his

sentence on appeal, and the United States Court of Appeals for the Second Circuit

affirmed. See United States v. Tocco, 

, 130-31 (2d Cir. 1998).

       Ferranti then filed a motion in the sentencing court pursuant to 28 U.S.C. § 2255

to vacate, set aside, or correct his sentence, raising an Apprendi challenge. See Apprendi

v. New Jersey, 

(2000). The Second Circuit affirmed the denial of that

motion, concluding that Apprendi was not implicated because Ferranti’s sentence was

based on a factor that the jury found beyond a reasonable doubt and did not exceed the

relevant statutory maximum. See Ferranti v. United States, 6 F. App’x 67, 69-70 (2d Cir.
                                               2
2001) (not precedential). The Second Circuit also stated that Ferranti’s motion was

properly denied to the extent that it sought to relitigate the sentencing challenges raised in

Ferranti’s direct appeal. See 

The Second Circuit afterwards affirmed the denial

of a much-later-filed motion to reduce Ferranti’s sentence, see United States v. Ferranti,

411 F. App’x 373, 374-75 (2d Cir. 2011) (not precedential), and a second or successive

§ 2255 motion that challenged Ferranti’s conviction (but not his sentence) on unrelated

grounds. See Ferranti v. United States, 480 F. App’x 634, 636-39 (2d Cir. 2012) (not

precedential).

       The sentencing question at issue in this appeal then surfaced in the United States

District Court for the District of South Carolina, where Ferranti was confined at FCI-

Edgefield. There, Ferranti filed a petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2241 seeking resentencing. Ferranti argued that because he was receiving less

good-time credit per year than the sentencing judge had anticipated, his sentence now

amounted to an illegal life sentence. The purported problem that Ferranti identified was

that the Bureau of Prisons calculated his good-time credit based on his sentence as

actually served, rather than on the total sentence imposed. Ferranti ultimately requested

that the court either vacate his sentence, or instead characterize his petition as a challenge

to the execution of his sentence and order the Bureau of Prisons to recalculate his good-

time credit to conform to the sentencing judge’s original understanding. The District

Court concluded, however, that it lacked jurisdiction to hear the petition, and then

dismissed it without prejudice to seek leave from the Second Circuit to file a second or
                                              3
successive § 2255 motion. See Ferranti v. Atkinson, No. 5:13-cv-03471-TMC (D.S.C.

Feb. 6, 2014).

       On November 20, 2015, Ferranti filed an application in the United States Court of

Appeals for the Second Circuit for leave to file a successive § 2255 motion in the Eastern

District of New York. He cited the District of South Carolina’s decision as the “newly

discovered evidence” that justified the application. The application raised the following

ground for relief, which closely tracked the grounds set out in Ferranti’s South Carolina

case: “The Eastern District of New York calculated Petitioner’s sentence by applying an

assumed and predeterminate award of Good Conduct Time (‘GCT’). The court did not

defer to the BOP’s GCT calculation schedule, in which GCT is accrued on actual time

served.” Ferranti also argued that the “[s]entencing court is the proper venue to correct

Petitioner’s unconstitutional sentence” because “the underlying imposition of the

sentence, not its conditions[,] are at issue.”

       The Second Circuit denied that application, stating that “Petitioner has not made a

prima facie showing that he received new evidence, such as the BOP’s actual calculation

of his release date, since his previous petition under 28 U.S.C. § 2255. The order of the

South Carolina district court does not constitute ‘newly discovered evidence’ within the

meaning of § 2255(h)(1).” Order, Ferranti v. Untied States, C.A. No. 15-3758 (2d Cir.

Dec. 15, 2015). Ferranti has since filed another application in the Second Circuit to file a

successive § 2255 motion in the Eastern District of New York, this time raising unrelated

grounds based on Johnson v. United States, 

(2015).
                                                 4
       Ferranti, now an inmate at LSCI-Allenwood, which is within the jurisdiction of the

United States District Court for the Middle District of Pennsylvania, filed a petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2241. Ferranti argued that the District

Court should exercise jurisdiction over his petition and correct his original sentence,

much as he did in his petition filed in the District of South Carolina. He did not,

however, dispute the Bureau’s calculation of his good-time credits or otherwise challenge

the execution of his sentence. The District Court dismissed the § 2241 petition for want

of jurisdiction because a motion filed pursuant to 28 U.S.C. § 2255 was not inadequate or

ineffective to test the legality of Ferranti’s detention. This appeal followed.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and our

review of the District Court’s dismissal of Ferranti’s § 2241 petition is plenary. See

Cradle v. U.S. ex rel. Miner, 

, 538 (3d Cir. 2002) (per curiam). Section

2241 gives federal district courts the power to grant a writ of habeas corpus to prisoners

within their jurisdiction who are “in custody in violation of the Constitution or laws or

treaties of the United States.” 28 U.S.C. § 2241(c)(3). That said, “the usual avenue for

federal prisoners seeking to challenge the legality of their confinement” is through a

motion filed pursuant to 28 U.S.C. § 2255 in the court of conviction and sentencing. In

re Dorsainvil, 

, 249 (3d Cir. 1997). A petitioner otherwise required to rely

on § 2255 may pursue relief through § 2241 only if a § 2255 motion would be

“inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e).


                                              5
       We have so far applied that safety valve in the rare situation where a prisoner has

had no prior opportunity to challenge his conviction for actions that an intervening

change in law has made non-criminal. Okereke v. United States, 

, 120 (3d

Cir. 2002) (citing 

); see also Gardner v. Warden Lewisburg

USP, ___ F.3d. ____, C.A. No. 14-3902, 

, at *3 (3d Cir. Jan. 4, 2017). A

§ 2255 motion is not “inadequate or ineffective” merely because the petitioner cannot

meet the gatekeeping requirements of § 2255, see 

, or because

the sentencing court has denied relief, see 

. “It is the inefficacy of

the remedy, not the personal inability to use it, that is determinative.” 

       Ferranti failed to raise his challenge at sentencing, in his direct appeal, or in his

first § 2255 motion. Having failed to do so, it is Ferranti’s inability to meet the

gatekeeping requirements of § 2255(h) that prevented him from obtaining relief in the

Second Circuit, not the inadequacy or ineffectiveness of the § 2255 remedy. There is no

“limitation of scope or procedure” that prevented Ferranti from receiving “a full hearing

and adjudication of” his claim. See 

. Moreover, the Second

Circuit may have left open the possibility that Ferranti could later meet the § 2255(h)

gatekeeping requirements, when it observed that Ferranti had not provided “new

evidence, such as the BOP’s actual calculation of his release date[.]” An authorized

second or successive § 2255 motion in the Eastern District of New York remains the only




                                               6
potential vehicle for relief on Ferranti’s claim, not a § 2241 petition filed in the Middle

District of Pennsylvania.1

       For the foregoing reasons, we conclude that this appeal presents no substantial

question. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6. We will summarily affirm the

District Court’s judgment.




1
 Also, because authorization from the United States Court of Appeals for the Second
Circuit is required for Ferranti to file a second or successive § 2255 motion in the Eastern
District of New York, it would not have been appropriate for the District Court to transfer
Ferranti’s petition to the United States District Court for the Eastern District of New
York, as Ferranti argues in his response in support of his appeal.
                                              7