DLD-273 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 19-1906

___________

MARIO ANTON LEE,

Appellant

v.

WARDEN LEWISBURG USP

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 3-19-cv-00235)

District Judge: Honorable Malachy E. Mannion

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

or Summary Action Pursuant to Third Circuit L.A.R .27.4 and I.O.P. 10.6

September 5, 2019

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

(Opinion filed: September 24, 2019)

___________

OPINION*

___________

PER CURIAM

 * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Pro se appellant Mario Anton Lee appeals the District Court’s order dismissing his 

petition under 28 U.S.C. § 2241. For the reasons detailed below, we will summarily 

affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.

In 2001, after a trial in the United States District Court for the Northern District of 

Alabama, a jury found Lee guilty of conspiracy to distribute cocaine in violation of 21 

U.S.C. § 846, possession with intent to distribute heroin in violation of 21 U.S.C. 

§ 841(a)(1), possession with intent to distribute marijuana in violation of 21 U.S.C. 

§ 841(a)(1), and three counts of money laundering in violation of 18 U.S.C. 

§ 1956(a)(1)(A)(i). See N.D. Ala. Cr. A. No. 2:00-cr-00347. The District Court 

sentenced Lee to a total term of 105 years’ imprisonment. Lee appealed, and the 

Eleventh Circuit affirmed. See 11th Cir. C.A. No. 01-13194. Lee then filed a motion 

under 28 U.S.C. § 2255. The District Court denied the motion on the merits, and the 

Eleventh Circuit denied Lee’s request for a certificate of appealability. See 11th Cir. 

C.A. No. 06-16103. Lee has continued to attack his criminal judgment in the Northern 

District of Alabama, to no avail. 

At issue in this appeal is a petition under 28 U.S.C. § 2241 that Lee filed in the 

Middle District of Pennsylvania, his district of incarceration (at that time), challenging 

his conviction in the Northern District of Alabama. More specifically, he claimed that he 

had been sentenced beyond the term authorized by the United States Sentencing 

Guidelines and in contravention of the Supreme Court’s decision in Apprendi v. New 
3

Jersey, 530 U.S. 466 (2000).

1

 Approving and adopting a Magistrate Judge’s report and 

recommendation, the District Court dismissed the petition, concluding that Lee could 

raise his claims only, if at all, in a motion under 28 U.S.C. § 2255. 

Lee filed a notice of appeal. He also presents motions to be released on bail, for 

appointment of counsel, and to prevent his transfer. 

We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. We exercise 

plenary review over the District Court’s legal conclusions. See Cradle v. United States 

ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002) (per curiam).

2

 

We agree with the District Court’s disposition of this case. As we have previously 

explained, “[m]otions pursuant to 28 U.S.C. § 2255 are the presumptive means by which 

federal prisoners can challenge their convictions or sentences[.]” Okereke v. United 

States, 307 F.3d 117, 120 (3d Cir. 2002). “[U]nder the explicit terms of 28 U.S.C. 

§ 2255, unless a § 2255 motion would be ‘inadequate or ineffective,’ a habeas corpus 

petition under § 2241 cannot be entertained by the court.” Cradle, 290 F.3d at 538 

(quoting § 2255(e)). 

This exception is narrow and applies in only rare circumstances. See Bruce v. 

Warden Lewisburg USP, 868 F.3d 170, 180 (3d Cir. 2017). In In re Dorsainvil, 119 F.3d 

245, 251–52 (3d Cir. 1997), we recognized that the exception could apply where an 

 1 Lee also filed a second § 2241 petition that was separately docketed in the District 

Court. His appeal from the decision in that case has been docketed in C.A. No. 19-1907.

2 Lee does not need to obtain a certificate of appealability to proceed with this appeal. 

See Bruce v. Warden Lewisburg USP, 868 F.3d 170, 177 (3d Cir. 2017).
4

intervening change in the law decriminalized the conduct for which the petitioner had 

been convicted. See also Cordaro v. United States, No. 18-1022, -- F.3d --, 2019 WL 

3542904, at *5 (3d Cir. Aug. 5, 2019) (explaining that this exception applies if “the 

prisoner has had no earlier opportunity to challenge his conviction for a crime that an 

intervening change in substantive law may negate” (quoting Bruce, 868 F.3d at 180)).3

Lee argues that this exception applies, but we disagree. In his § 2241 petition, Lee 

focused primarily on his argument that the District Court had violated Apprendi by 

making findings of fact about the quantity and type of drugs involved in his offenses. 

However, we have explicitly held that “§ 2255 [i]s not inadequate or ineffective for [a 

prisoner] to raise his Apprendi argument.” Okereke, 307 F.3d at 121; see also Gardner v. 

Warden Lewisburg USP, 845 F.3d 99, 103 (3d Cir. 2017). Moreover, while Lee also 

challenges his sentence under the Sentencing Guidelines, he could have raised these

arguments on direct appeal or in his initial § 2255 motion, so he cannot pursue these 

claims via § 2241. See In re Dorsainvil, 119 F.3d at 251–52; see also Queen v. Miner, 

530 F.3d 253, 255 (3d Cir. 2008) (per curiam) (holding that § 2241 petitioner could not 

raise issues that “either had been, or could have been, decided in his previous habeas 

action”). 

Accordingly, we will summarily affirm the District Court’s judgment. Lee’s 

motions for appointment of counsel, release on bail, and to prevent transfer are denied. 

 3 Section 2255 is not “‘inadequate or ineffective’ so as to enable a . . . petitioner to invoke 

§ 2241 merely because that petitioner is unable to meet the stringent gatekeeping 

requirements of the amended § 2255.” Okereke, 307 F.3d at 120 (quoting In re 

Dorsainvail, 119 F.3d at 251). 
5

See generally 18 U.S.C. § 3006A(a)(2); Landano v. Rafferty, 970 F.2d 1230, 1239 (3d 

Cir. 1992); Fed. R. App. P. 23(b).

4

 To the extent that Lee requests any additional relief, 

it is denied.

 4 As Lee has already been transferred to Hazelton USP in West Virginia, his request to 

prevent transfer is moot. Putting aside whether that transfer violated Fed. R. App. P. 23, 

as Lee asserted it would, the transfer does not divest us of jurisdiction to review the 

District Court’s decision. See Barden v. Keohane, 921 F.2d 476, 477 n.1 (3d Cir. 1990).