CLD

- 133 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________

No. 11

- 3376

___________ AMAR KHALID ABED, OBAYDA HANIFI ABED , Appellants

v. WARDEN B.A. BLEDSOE

____________________________________ On A pp eal from the United States District Court for the Middle District of Pennsylvania (M.D. Pa. Civ. No. 4

- 10

- cv - 0 1617) District Judge: Honorable Richard P. Conaboy

____________________________________ Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1 915 (e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 March 8, 2012 Before: RENDELL, HARDIMAN and VAN ANTWERPEN , Circuit Judges (Opinion filed : April 4, 2012 )

_________ OPINION

_________ PER CURIAM Amar and Obay d a Abed, inmate s of the United States Penitentiary in Lewisburg, Pennsylvania, appeal the District Court ’ s order dismissing their petition for a writ of habeas corpus under 28 U.S.C. § 2241. We have jurisdiction over this appeal pursuant to2 28 U.S.C. § 1291, and we exercise plenary review over the district court ’ s legal conclusions and apply a clearly erroneous standard to its factual findings. See Cradle v. United States ex rel. Miner , 290 F.3d 536, 538 (3d Cir. 2002) (per curiam) . For the reasons discussed below, we will summarily affirm the District Court ’ s order.
In March 1998 , the Abeds were convicted in the United States District Court for the Western District of Virginia of, among other things, using a destructive device during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). That charge concerned the Abeds ’ use of a Molotov cocktail to commit arson. Amar and Obay d a were sentenced to 570 and 497 months ’ imprisonment, respectively. The Abeds appealed, and the Fourth Circuit affirmed their criminal judgments. See United States v. Abed , 203 F.3d 822 (4th Cir. 2000) (unpublished table decision)

. Thereafter, in 2001, the Abeds filed a motion under 28 U.S.C. § 2255. Among their arguments was a claim that the District Court “ invaded the provin ce of the jury by instructing the jury that a Molotov Cocktail, ‘ a device consisting of a bottle, gasoline, and
a rag, ’ is an incendiary destructive device, ” rather than submitting that issue to the jury. Abed v. United States , Civ. A. No. 01

- 0383, 2001 W L 1343394, at *1 (W.D. Va. Oct. 19, 2001). The District Court held that the Abeds had defaulted the claim because they had raised it neither at trial n or on appeal, and had failed to show actual prejudice or actual innocence. See id. The Fourth Circuit refused to issue a certificate of appealability. After filing several other motions not relevant here (all of which were denied), the Abeds filed a petition under § 2241 in the United States District Court for the Middle3 District of Pennsylvania. In thei r § 2241 petition, the Abeds reiterated their claim that the question of whether a Molotov cocktail qualifies as a “ destructive device ” under § 924(c) should have been submitted to the jury rather than resolved by the District Court. In support of this ar gument, t he Abeds cited United States v. O ’ Brien , 130 S. Ct. 2169, 2180 (2010) , where the Court held that, for purposes of § 924(c), whether the firearm at issue was a machine gun is an issue that must be proved to the jury beyond a reasonable doubt

. The District Court , approving and adopting a magistrate judge ’ s report and recommendation, concluded that the Abeds ’ petition was in essence a successive § 2255 motion, and thus dismissed it for lack of jurisdiction. See § 2255(h). The Abeds then filed a t i mely notice of appeal. We agree with the District Court ’ s analysis. As we have recognized, “ under 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 enterta ined by the court. ” Cradle , 290 F.3d at 538 (quoting § 2255(e)); see also Application of Galante , 437 F.2d 1164, 1165 (3d Cir. 1971) ( “ This Court has time and again ruled that in a situation such as here presented habeas corpus relief is unavailable for l ack of jurisdiction. ” ). Thus, in cases like this one, prisoners may proceed under § 2241 only where “the remedy by [§ 2255] motion is inadequate or ineffective to test the l egality of [the] detention. ” § 2255(e). In In re Dorsainvil , 119 F.3d 245 (3d Ci r. 1997), we explained that § 2255 may be inadequate or ineffective where an intervening change in law has potentially made the conduct for which the petitioner was convicted non

- criminal. See id. at 2484 (permitting use of § 2241 in case of “ party who cla ims that s/he is factually or legally innocent as a result of a previously unavailable statutory interpretation ” ). However, the exception is narrow: a motion under § 2255 is not inadequate or ineffective simply because a district court has denied relief or t he petitioner is prevented by § 2255(h) ’ s gatekeeping requirements from litigating his current claims. See Cradle , 290 F.3d at 538 ( “ It is the inefficacy of the remedy, not the personal inability to use it, that is determinative. ” ). The Abeds argue t hat this exception applies to them because a change in law wrought by O ’ Brien has rendered them actually innocent of the charge under § 924(c)

. We disagree , for two reasons

. First, O ’ Brien did not announce a new rule of law ; rather, it recognized that th e holding of Castillo v. United States , 530 U.S. 120 , 123

- 24 (2000)

— that the particular firearm type in § 924(c) is an element of the offense that must be found by the jury

— remained valid notwithstanding an intervening statutory amendment to § 924(c). The Abeds cited Castillo in support of this argument in their § 2255 motion.
T hus, in this case , unlike Dorsainvil , the Abeds did previously have “ an opportunity to challenge [the] conviction as inconsistent with the Supreme Court ’ s interpretation of §
9 24(c)(1). ” 119 F.3d at 251. Further, § 2255 is not rendered inadequate or ineffective

“ merely because the sentencing court [did] not grant relief. ” Cradle , 290 F.3d at 539. Second, O ’ Brien did not render the conduct for which the Abeds were convicted

n on - criminal. Rather, it merely emphasized that the identity of the weapon is a question for the jury , not the court

. See generally Logan v. United States , 434 F.3d 503, 509

- 105 (6th Cir. 2006) (explaining that the Supreme Court ’ s opinion in Jones v. Unite d States , 526 U.S. 227 (1999), “ concerning who must find a fact (not what fact must be found), in no way renders [defendant ’ s] conduct legal. The substance of the law did not change; only the procedure changed. ” ). The Abeds have not argued that a Molotov cocktail does not qualify as a “ destructive device ” under § 924(c ) , see generally United States v. York , 600 F.3d 347, 354 (5th Cir. 2010) ( “ [w] e hold that a Molotov cocktail falls within the def inition of a destructive device ” ) ; instead, they contend onl y that the jury should have been the one to find this fact. T hey thus cannot show that a change in law has

“ negate[d] ” the crime for which they were convicted. Dorsainvil , 119 F.3d at 251; see also Okereke v. United States , 307 F.3d 117, 120 (3d Cir. 200 2)

. For these reasons, we conclude that the Abeds have failed to show that § 2255 is inadequate or ineffective, and that the District Court there fore properly dismissed their § 2241 petition. Accordingly, w e will summarily affirm the District Court ’ s o rder. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.