DLD-022 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-2433
___________
JOSEPH MASSARO,
Appellant
v.
WARDEN LEWISBURG USP
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3-17-cv-00180)
District Judge: Honorable James M. Munley
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2) or
Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
October 26, 2017
Before: JORDAN, SHWARTZ and KRAUSE, Circuit Judges
(Opinion filed: November 2, 2017)
_________
OPINION*
_________
PER CURIAM
Joseph Massaro, a federal prisoner proceeding pro se, appeals from the District
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Court’s order dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. Because this appeal does not present a substantial question, we will summarily
affirm. See Third Cir. L.A.R. 27.4; I.O.P. 10.6.
I.
In October 1993, a jury sitting in the United States District Court for the Southern
District of New York found Massaro guilty of several federal racketeering charges,
including murder in aid of racketeering. The District Court sentenced him to a term of
life imprisonment. Upon review, the United States Court of Appeals for the Second
Circuit affirmed the conviction and sentence. United States v. Massaro, 57 F.3d 1063 (2d
Cir. 1995) (table). Massaro later filed a motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255 in the Southern District of New York, alleging that
his trial counsel had provided ineffective assistance. The District Court denied relief and
the Second Circuit affirmed.1 Massaro v. United States, 152 F. App’x 20 (2d Cir. 2005)
(not precedential). Massaro then sought leave to file a second or successive § 2255
motion, but the Second Circuit denied his request.
In January 2017, Massaro filed the current § 2241 habeas petition in the Middle
District of Pennsylvania, where he is incarcerated. In his petition, Massaro claimed that
the sentencing court had committed two errors, and argued that, in light of the Supreme
1
The District Court initially denied Massaro’s § 2255 motion on the ground that his
ineffectiveness claim was procedurally defaulted, and the Second Circuit affirmed. The
Supreme Court reversed, however, holding that Massaro could raise the claim via § 2255
even though he could have, but did not, raise it on direct appeal. Massaro v. United
States, 538 U.S. 500, 504 (2003).
2
Court’s decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), his mandatory life
sentence for murder is now unlawful. The District Court screened the petition pursuant
to Rule 4 of the Rules Governing Habeas Corpus Cases and concluded that Massaro’s
claims did not qualify for § 2255 “safety valve” relief via § 2241. Therefore, the District
Court dismissed the petition for lack of jurisdiction. This appeal followed.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a).
We exercise plenary review over the District Court’s legal conclusions and apply a
clearly erroneous standard to its factual findings. See Ruggiano v. Reish, 307 F.3d 121,
126-27 (3d Cir. 2002).
A motion filed under § 2255 in the sentencing court is the presumptive means for
a federal prisoner to challenge the validity of a conviction or sentence. Okereke v. United
States, 307 F.3d 117, 120 (3d Cir. 2002). A federal prisoner can seek relief under § 2241
only if the remedy provided by § 2255 “is inadequate or ineffective to test the legality of
his detention.” 28 U.S.C. § 2255(e); see Cradle v. United States ex rel. Miner, 290 F.3d
536, 538 (3d Cir. 2002) (per curiam). We have applied this “safety valve” in the rare
situation in which a prisoner has not had a 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. A § 2255 motion is not “inadequate or ineffective” merely because the
petitioner cannot meet the stringent gatekeeping requirements of § 2255(h), id., or
3
because the sentencing court has not granted relief, Cradle, 290 F.3d at 539; see also In re
Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997).
The District Court correctly concluded that Massaro’s claims do not fit within the
narrow class for which a § 2255 motion would be inadequate or ineffective. Massaro
raises two challenges to his sentence: first, that the sentencing court relied on a version of
the United States Sentencing Guidelines that was not in effect when he committed his
crimes; and second, that the sentencing court applied the Guideline provision for
premeditated murder, U.S.S.G. § 2A1.1, when it should have relied on the provision for
non-premeditated murder, § 2A1.2. These claims do not rely on an intervening change in
the law that has rendered the conduct for which he was convicted non-criminal.
Massaro also invokes Alleyne v. United States in an effort to fit his sentencing
claims within § 2255’s “safety valve.” In Alleyne, the Supreme Court held that any fact
that increases the penalty for a crime beyond the mandatory minimum sentence must be
submitted to the jury. 133 S. Ct. at 2155. Even assuming, arguendo, that Alleyne were
relevant to Massaro’s sentence, we have made clear that Alleyne-based claims cannot be
raised in a § 2241 petition. Gardner v. Warden Lewisburg USP, 845 F.3d 99, 102-03 (3d
Cir. 2017) (holding that prisoners sentenced prior to Alleyne may not challenge their
sentences under § 2241 because Alleyne did not render the crimes for which they were
convicted non-criminal).2
2
Massaro’s argument that Alleyne should be applied retroactively to cases on collateral
review in light of the Supreme Court’s recent decisions in Montgomery v. Louisiana, 136
4
For these reasons, we conclude that this appeal presents no substantial
question. Therefore, we will summarily affirm the District Court’s judgment. See
Third Circuit LAR 27.4 and I.O.P. 10.6.3
S. Ct. 718 (2016), and Welch v. United States, 136 S. Ct. 1257 (2016), does not advance
his case. As discussed above, § 2241 is not a proper vehicle for Alleyne-based claims.
Moreover, Alleyne does not apply retroactively. United States v. Winkelman, 746 F.3d
134, 136 (3d Cir. 2014).
3
In his § 2241 petition, Massaro also argued that the Bureau of Prisons had improperly
denied him “compassionate early release.” Under 18 U.S.C. § 3582(c)(1)(A)(ii), a term
of imprisonment can be reduced for prisoners over the age of seventy who meet certain
conditions, but only upon “motion of the Director of the Bureau of Prisons.” Courts have
generally held that the BOP’s decision to file a motion under § 3582(c)(1)(A) or its
predecessor is not judicially reviewable, as the statute vests the decision solely with the
BOP. See, e.g., Fernandez v. United States, 941 F.2d 1488 (11th Cir. 1991); Simmons v.
Christensen, 894 F.2d 1041 (9th Cir. 1990); Turner v. United States Parole Comm’n, 810
F.2d 612 (7th Cir. 1987). In any event, the documentation that Massaro submitted in
support of his petition does not show that the BOP ever made a motion under
§ 3582(c)(1)(A)(ii).
5