NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________ No. 08

- 4720

________________ MELVIN POLLARD,

Appellant

v. JOHN YOST, Warden, FCI Loretto

________________ Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 3

- 07

- cv - 00235) District Judge: Honorable Kim R. Gibson

________________ Argued January 5, 2011 Before: AMBRO and FISHER, Circuit Judges and S Á NCHEZ, * District Judge (Opinion filed January 24, 2011 ) Patrick Matusky, Esquire (Argued) Charles M. Hart, Esquire Vincent J. Nolan III, Esquire Duane Morris 1940 Route 70 East, Suite 200 Cherry Hill, NJ 08003

* Honorable Juan R. Sánchez , District Court Judge, Eastern District of Pennsylvania , sitting by designation.2

Counsel for Appellan t Robert S. Cessar Acting United States Attorney Laura S. Irwin, (Argued) Assistant United States Attorney Robert L. Eberhardt, Esquire Office of the United States Attorney 700 Grant Street, Suite 4000 Pittsburgh, PA 1529

- 0000 Counsel for Appe llee

________________ OPINION

________________ AMBRO, Circuit Judge
Appellant Melvin Pollard raises a claim of actual innocence of his sentence as a career offender due to a change in substantive law subsequent to exhausting his appeals.
We conclude that , under the particular circumstances of Pollard‘s case, the District Court was correct in determining that it lacks subject matter jurisdiction to consider his petition
for habeas corpus . Thus, we affirm that ruling and dismiss Pollard‘s petition. Pursuant to a written plea agreement, in 2002 Pollard pled guilty in the United States District Court for the Northern District of Illinois to conspiracy to possess phencyclidine (―PCP‖) with intent to distribute. As part of the plea agreement, the
Govern ment agreed to file a downward departure motion pursuant to U.S.S.G. § 5K1.1
and 18 U.S.C. § 3553(e) , recommending that the Court impose a term of imprisonment equivalent to two

- thirds of the low end of the applicable Sentencing Guidelines range.3

Although Pollard disagreed, the Government argued in the plea agreement and at sentencing that his prior criminal history qualified him as a career offender under U.S.S.G. § 4B1.1. The Court accepted the plea agreement and granted the downward departure
motion. It also accepted the Government‘s classification of Pollard as a career offender. It imposed a term of imprisonment of 194 months, below the applicable Sentencing Guidelines range of 292 to 365 months‘ imprisonment, and also below the minimum 210

- month t erm he would have faced had he not been classified as a career offender. Pollard‘s career offender classification was based in part on a 1983 state court drug conviction under former Ohio Rev. Code § 2925.03(A)(6). Pollard did not directly appeal his sen t ence. However, in August 2003 he filed a

pro se petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in the Northern District of Illinois. He argued, inter alia , that the sentencing court erred in classifying him as a career offender. 1 In January 2004, the C ourt dismissed the petition , holding that Pollard had knowingly and voluntarily waived his right to attack his sentence collaterally. 2 In 2006, the Sixth Circuit Court of Appeals held in United States v. Montanez , 442 F.3d 485, 487 (6th Cir. 2006), that the offense set f orth in former Ohio Rev. Code

1 Pollard argued that because his 1983 state co urt conviction was imposed more than 15 years before his offense before us, it was not a predicate offense under § 4B1.1

. 2 Pollard‘s plea agreement contained a provision waiving his right to challenge his sentence ―in any collateral attack‖ except those raising claims alleging that his plea was involuntary or that counsel provided ineffective assistance in negotiating the waiv er of his collateral appellate rights. Pollard appealed the decision to the Seventh Circuit Court of Appeals, which denied his request for a certificate of appealability in December 2004.4

§ 2925.03(A)(6)

— the same offense that gave rise , in part , to Pollard‘s career offender
classification

— was not a predicate offense for career offender status under § 4B1 .1. In September 2007, Pollard filed this habeas petition pursuant to 28 U.S.C. § 2241 in the Western District of Pennsylvania, arguing that, in light of Montanez , his sentence as a career offender should be vacated. He claimed that he was entitled to p ursue relief under § 2241 because § 2255 was inadequate and ineffective to test the legality of his detention,

as Montanez had been decided after the disposition of his prior § 2255 petition

. The District Court referred Pollard‘s petition to a Magistrate Judge , who issued a Report and Recommendation (―Report‖) concluding that Pollard had not demonstrated that § 2255 was inadequate or ineffective, and thus the Court lacked subject matter jurisdiction to consider his § 2241 petition. The Court adopted the R eport and dismissed Pollard‘s petition over his objections. This appeal followed. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. Although Pollard may not file a successive § 2255 petition due to the gate

- keeping provision of § 2255(h), 3 a ―safety valve‖ provision allows challenges to a conviction or
sentence in certain narrow circumstances via the federal courts‘ § 2241 jurisdiction when a prisoner can show that § 2255 is ―inadequate or ineffective to test the legality of his

3 A district court lacks jurisdiction to consider a successive § 22 55 motion unless it is certified by a panel from this Court to contain a claim of: ( 1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reaso nable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. 28 U.S.C. § 2255(h)(1)

- (2). It is undisputed that Pollard cannot meet that standard.5

detention.‖ § 2255(e). The safety valve provision was not amended by AEDPA. See In
re Dorsainvil , 119 F.3d 245, 249 (3d Cir. 1997).
We concluded in Dorsainvil that , in the narrow circumstances the petitioner in that case faced, § 2255 was inadequate to test the lega lity of his detention. Id. at 251. Dorsainvil was convicted of using a gun in connection with a drug crime even though he did not ―use‖ a gun, but a gun was present in the car from which drugs were to be bought.
After he had exhausted his direct appeals and a § 2255 petition , the Supreme Court
decided in Bailey v. United States , 516 U.S. 137 (1995), that the criminal statute under
which Dorsainvil had been convicted did not cover mere presence of a gun at the scene of a drug crime. Dorsainvil argued tha t Bailey rendered him actually innocent of ―use‖ of a gun in connection with a drug offense. Finding Dorsainvil‘s claim under Bailey to be worthy of consideration on the merits, we applied the savings clause of § 2255(e) and determined that the District Court had jurisdiction to hear his claim under its § 2241 jurisdiction even though he did not meet the gate

- keeping requirements of § 2255(h). ―If . . . it is a  ̳complete miscarriage of justice‘ to punish a defendant for an act that the law does not make criminal, thereby warranting resort to the collateral remedy afforded by § 2255,‖ we concluded, ―it must follow that it is the same  ̳complete miscarriage of justice‘ when the AEDPA amendment to § 2255 [the gate

- keeping requirement] makes that collateral remedy unavailable. In that unusual circumstance, the remedy afforded by § 2255 [was]  ̳inadequate or ineffective to test the legality of [Dorsainvil's] detention.‘‖ Dorsainvil , 119 F.3d at 251 (citing Davis v. United States, 417 U.S. 333 , 346 (1974)).6

Pollard argues that , under Dorsainvil , he should be heard on the merits of his claim that his sentence was illegally enhanced , on the groun d that he was a career
offender , when United States v. Montanez establishes as a matter of law tha t he was not a
career offender. As the District Court‘s Report noted, Dorsainvil applies when there is a ―claim of actual innocence coupled with the inability to have brought the claim before because of a change in the construction of the criminal statute by a court having the last word on the proper construction of the statute.‖ Report at 9

- 10 (internal citation omitted). However, ― Dorsainvil does not answer the question of whether this is the only kind of
claim of actual innocence that so establishes t he inadequacy of Section 2255.‖ Id. (emphasis in original). In other words, we have yet to decide whether innocence of the sentence may also be grounds for applying the § 2255(e) savings clause. As the District Court‘s Report noted, there are two princ ipal aspects of Pollard‘s case that are analogous to Dorsainvil. ―First, although petitioner is not claiming actual innocence of the federal crime for which he was convicted, he is making a claim of actual innocence of the sentence imposed, i.e., he is cl aiming that he is not  ̳guilty of‘ the career criminal enhancement, which is to say that he should not have been sentenced to 194 months (as permitted under the career criminal enhancement) but should only have been sentenced to approximately 140 months.‖ Report at 11. Second, ―the Montanez decision of the Court of Appeals for the Sixth Circuit [,] which construed the Ohio statute under
which [ P ollard] was convicted in 1983, did not occur until after [he] had exhausted his appeals and until after this Section 2255 motion had been decided. Hence, similar to
Dorsainvil , [Pollard] could not have previously raised the claim he raises herein.‖ Id.7

Despite these two similarities, the District Court ultimately d eclined to apply the
Dorsainvil exception to Pollard for multiple reasons. We rely on only one of those

reasons

– namely, Pollard ha s not shown that it would be a complete miscarriage of justice were we to decline to exercise § 2241 jurisdiction. 4 B ecause it was a plea agreement that determined his sentence , we cannot be certain what it would have been
absent that agreement. As we cannot determine whether he would have been sentenced to a shorter term of imprisonment had Montanez already been decided, or whether the Government would now make the same plea agreement as it did in 2002 if we remanded under a nullified plea agreement , Pollard cannot demonstrate a ctual innocence of his
sentence, regardless whether his career offender c lassification was in error

. For these reasons, we affirm the District Court in dismissing Pollard‘s petition for lack of subject matter jurisdiction. H owever, we do not foreclose the possibility that
Dorsainvil could be applied to a petitioner who can show that his or her sentence would have been lower but for a change in substantive law made after exhaustion of the petitioner‘s direct and collateral appeals under § 2255. 5

4 The Report concluded that it ―does not strike the court as unfair, let alone

. . . a miscarriage of justice, that Petitioner cannot now bring this sentencing claim , ‖ since Pollard ―bargained for the plea agreement , received benefits in exchange for the plea and knew fully well prior to entering the agreement that the Government sought the enhancement of Petitioner as a career criminal and that the court could certainly find him to be a career criminal.‖ Report at 16. 5 For example, in oral argument the Government noted that if a petitioner had been sentenced under the Armed Career Criminal Act of 1984 (―ACCA‖), 18 U.S.C. 924(e), in which a statutory minimum had applied rather than a bargained

- for plea agreement dictating the sentence, a miscarriage of justice could result if there were a subsequent change of law regarding what constitutes a predicate crime for ACCA purposes. We agree that such a case would present a situation different to that faced by Pollard.