DLD-332 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 15-2045

___________

MELVIN JORDAN, III,

 Appellant 

v.

UNITED STATES OF AMERICA

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 3-14-cv-02048)

Judge: Honorable James M. Munley

____________________________________

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

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

September 11, 2015

Before: FISHER, SHWARTZ, and GREENBERG, Circuit Judges

(Filed: September 16, 2015)

_________

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.
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Appellant Melvin Jordan, III, appeals the District Court’s order dismissing his 

habeas corpus petition, 28 U.S.C. § 2241, for lack of jurisdiction. For the reasons that 

follow, we will summarily affirm.

In 2008, the United States District Court for the Northern District of Iowa 

sentenced Jordan to a 169-month prison term on convictions for unlawful transportation 

of firearms and being a felon in possession of a firearm. In December, 2010, the 

sentencing court reduced his sentence to 109 months for changed circumstances under 

Federal Rule of Criminal Procedure 35(b). 

In March, 2014, Jordan filed a 28 U.S.C. § 2255 motion to vacate his sentence in 

the sentencing court. The sentencing court denied the § 2255 motion as time-barred, and 

the Eighth Circuit denied Jordan’s request for a certificate of appealability.

Jordan filed the instant 28 U.S.C. § 2241 petition in federal court in the Middle 

District of Pennsylvania, the jurisdiction where he is confined. Relying on Descamps v. 

United States, 133 S.Ct. 2276 (2013), Jordan claimed that the sentencing court 

erroneously relied on a state-court conviction for third-degree burglary in determining 

that he was a career criminal for sentencing purposes. The District Court dismissed his § 

2241 petition for lack of jurisdiction, concluding that § 2255’s safety valve, see In re 

Dorsainvil, 119 F.3d 245 (3d Cir. 1997), did not apply to Jordan’s claim. Jordan filed a 

motion to reconsider, which the District Court denied.

Jordan appeals. We have jurisdiction under 28 U.S.C. § 1291. See Burkey v. 

Marberry, 556 F.3d 142, 146 (3d Cir. 2009) (certificate of appealability not required to 

appeal from denial of § 2241 petition). Our Clerk advised Jordan that the appeal was 
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subject to dismissal under 1915(e) or summary action under Third Cir. LAR 27.4 and 

I.O.P. 10.6. He was invited to submit argument in writing, and he has done so. We have 

considered his submission.

We will summarily affirm the order of the District Court because no substantial 

question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. The 

District Court properly dismissed Jordan’s § 2241 petition because a motion filed under § 

2255 in the sentencing court is the presumptive means for a federal prisoner to challenge 

the validity of his conviction or sentence. See Okereke v. United States, 307 F.3d 117, 

120 (3d Cir. 2002). In certain limited circumstances, a petitioner can seek relief under § 

2241 if the remedy provided by § 2255 is inadequate or ineffective to test the legality of 

his detention. See Dorsainvil, 119 F.3d at 249-51. However, § 2255 is not inadequate or 

ineffective simply because the sentencing court did not grant relief on a prisoner’s § 2255 

motion or the prisoner is unable to meet the gatekeeping requirements, 8 U.S.C. § 

2255(h), for a second § 2255 motion. See Cradle v. United States ex rel. Miner, 290 F.3d 

536, 539 (3d Cir. 2002) (per curiam). We have applied the “safety valve” only where a 

prisoner has had no prior opportunity to challenge his conviction for actions deemed to be 

non-criminal by an intervening change in law. Okereke, 307 F.3d at 120 (citing 

Dorsainvil, 119 F.3d at 251). 

The District Court properly concluded that Jordan’s § 2241 petition does not fall 

within the narrow Dorsainvil exception. Jordan’s petition does not allege that he was 

denied an earlier opportunity to challenge the underlying burglary convictions upon 

which the sentencing court enhanced his sentence. Nor does he allege that the conduct 
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for which he was convicted for burglary is no longer criminal. Hence, Jordan’s claim is 

not the type of claim that allows him to pursue § 2241 relief under Dorsainvil. 

Descamps, on which Jordan relies, reaffirmed that sentencing courts may not apply the 

modified categorical approach to sentencing under the Armed Career Criminal Act when 

the underlying crime has a single, indivisible set of elements. Descamps did not render 

the conduct for which Jordan was convicted non-criminal. The District Court also 

correctly denied Jordan’s motion to reconsider, which relied on the contentions the 

District Court properly rejected when it dismissed his § 2241 petition. 

For the foregoing reasons, we will summarily affirm the order of the District Court 

dismissing Jordan’s § 2241 petition for lack of jurisdiction.