BLD-064                                                            NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ___________

                                         No. 16-3678
                                         ___________

                                     LEONARD HENRY,
                                               Appellant

                                               v.

                                WARDEN FAIRTON FCI
                         ____________________________________

                       On Appeal from the United States District Court
                                 for the District of New Jersey
                                (D.C. Civil No. 1:15-cv-08775)
                       District Judge: Honorable Jerome B. Simandle
                        ____________________________________

                           Submitted for Possible Summary Action
                      Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                      December 8, 2016

            Before: AMBRO, GREENAWAY, JR. and SCIRICA, Circuit Judges

                               (Opinion filed: February 9, 2017)
                                          _________

                                           OPINION*
                                           _________

PER CURIAM




*
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
       Federal prisoner Leonard Henry, proceeding pro se, appeals from the orders of the

United States District Court for the District of New Jersey dismissing his habeas petition

and denying his related motion to reconsider. For the reasons that follow, we will

summarily affirm both orders.

                                             I.

       A jury sitting in the United States District Court for the Southern District of

Florida found Henry guilty of charges stemming from a conspiracy to rob a shipment of

cocaine in Miami, including conspiracy to possess with intent to distribute cocaine and

various firearms offenses. Henry received a sentence of life in prison, a concurrent term

of 10 years, and a consecutive term of 30 years. The United States Court of Appeals for

the Eleventh Circuit affirmed the judgment in September 1999. Henry unsuccessfully

sought relief under 28 U.S.C. § 2255. He has also filed several unsuccessful § 2241

petitions. See, e.g., Henry v. Ebbert, 484 F. App’x 702 (3d Cir. 2012) (per curiam);

Henry v. U.S. Att’y Gen., 525 F. App’x 67 (3d Cir. 2013) (per curiam).

       In December 2015, Henry filed this § 2241 petition in the District of New Jersey

seeking relief based on 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 reasonable doubt.” Burrage, 134 S. Ct. at 887.1 Henry asserted that


constitute binding precedent.
1
  This enhancement increases the mandatory minimum and maximum sentences when
                                          2
he is “actually innocent” of an enhanced sentence as a result of Burrage and asked to be

resentenced for a misdemeanor drug conviction.2 He claimed that the jury never found

beyond a reasonable doubt that he possessed or distributed any form of drug and that the

District Court improperly “by-passed [the] statutory minimum or increased his penalty,”

exposing him to a greater sentence based on 300 kilograms of cocaine. On May 2, 2016,

the District Court dismissed the petition for lack of jurisdiction, concluding that a § 2255

motion was not an inadequate or ineffective means of challenging his sentence. Henry

timely moved for reconsideration. On July 19, 2016, the District Court entered an order

denying reconsideration. This appeal followed.3

                                             II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a).4

We exercise plenary review over the District Court’s dismissal of Henry’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 District Court’s denial of his motion to reconsider for abuse


“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, Henry was incarcerated in the Federal Correctional
Institution-Fairton in Fairton, New Jersey.
3
 Henry’s notice of appeal, dated September 16, 2016, and postmarked September 19,
2016, was timely. See Fed. R. App. P. 4(a); Houston v. Lack, 487 U.S. 266, 276 (1988);
see also Fed. R. Civ. P. 6(a).
4
 Henry 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
                                           3
of discretion, see 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 District Court’s

legal conclusions under a de novo standard and the District Court’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. L.A.R. 27.4; 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.




other grounds by Gonzalez v. Thaler, 132 S. Ct. 641 (2012).
                                           4
                                             III.

       We agree with the District Court 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 Henry was convicted. Rather, as

relevant to Henry’s case, Burrage merely 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 887.5 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 District Court correctly concluded that Henry could

not resort to § 2241 to raise his legal claim, and the District Court did not err in denying

his motion to reconsider.6

                                             IV.

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

affirm the District Court’s May 2, 2016, and July 19, 2016 orders.




5
 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.
6
 Even if the District Court had jurisdiction under 28 U.S.C. § 2241, Henry would not be
entitled to relief under Burrage because his case did not involve a finding of death or
serious bodily injury. See Burrage, 134 S. Ct. at 892; United States v. Henry, 653 F.
App’x 678, 679 (11th Cir. 2016) (per curiam).
                                              5