BLD-103 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-2394
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GAESON LEE MURRAY,
Appellant
v.
WARDEN FAIRTON FCI
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 1-17-cv-03585)
District Judge: Honorable Robert B. Kugler
____________________________________
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
January 25, 2018
Before: RESTREPO, BIBAS and NYGAARD, Circuit Judges
(Opinion filed: January 30, 2018 )
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OPINION*
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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.
Pro se appellant Gaeson Murray, a federal prisoner currently confined in FCI-
Fairton, appeals from an order of the United States District Court for the District of New
Jersey dismissing for lack of jurisdiction his petition for habeas corpus under 28 U.S.C.
§ 2241. For the reasons set forth 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 2005, Murray was convicted by a jury in the United States District Court for the
Western District of Virginia of one count of conspiracy to distribute and to possess with
intent to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 841
(b)(1)(A) and 846, and three counts of possession with intent to distribute and distribution
of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). See United States
v. Glascoe, W.D. Va. No. 04-cr-30016-008. Prior to trial, the Government filed an
information pursuant to 21 U.S.C. § 851, notifying Murray that, because his 2001 felony
conviction for possession of a controlled substance in Fauquier County, Virginia
constituted a “felony drug offense,” he was subject to a mandatory minimum term of 20
years in prison. See 21 U.S.C. § 841(b)(1)(A). In light of that conviction, Murray was
sentenced to the mandatory minimum term of 20 years in prison. The United States
Court of Appeals for the Fourth Circuit affirmed his judgment of conviction and sentence
on appeal. See United States v. Murray, 217 F. App’x 277, 277 (4th Cir. 2007) (per
curiam).
In 2008, Murray filed a motion pursuant to 28 U.S.C. § 2255. He argued, inter
alia, that his counsel was ineffective for failing to object to the notice of enhanced
sentence under § 851 and that his mandatory minimum sentence was a violation of due
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process. The District Court denied the motion on the merits after an evidentiary hearing,
and the Fourth Circuit declined to issue a certificate of appealability. See United States
v. Murray, 333 F. App’x 714 (4th Cir. 2009) (per curiam). In the Fourth Circuit, Murray
has sought, and been denied, permission to file a second or successive § 2255 motion.
Murray then filed the § 2241 habeas petition at issue here while incarcerated
within this Circuit. He argued therein that he is actually innocent of his enhanced
sentence under Alleyne v. United States, 133 S. Ct. 2151 (2013), because the question of
whether his Virginia conviction constituted a “felony drug offense” was never presented
to a jury and found beyond a reasonable doubt, and that he is actually innocent of his
enhanced sentence also under Mathis v. United States, 136 S. Ct. 2243 (2016), United
States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), and Holt v. United States, 843 F.3d 720
(7th Cir. 2016), because those cases support the proposition that the Virginia statute
under which he was convicted is no longer a “felony drug offense.” Murray argued that
he should, therefore, be resentenced without the enhancement. The District Court
dismissed the petition for lack of jurisdiction. Murray appeals.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and we
exercise plenary review over the District Court’s legal conclusions and review its factual
findings for clear error. See Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d
Cir. 2002) (per curiam).
“Motions 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). As we have explained, “under the explicit
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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)). “A § 2255 motion is inadequate or ineffective only
where the petitioner demonstrates that some limitation of scope or procedure would
prevent a § 2255 proceeding from affording him a full hearing and adjudication of his
wrongful detention claim.” Id. at 538. This exception is narrow and applies in only rare
circumstances. See In re Dorsainvil, 119 F.3d 245, 251-52 (3d Cir. 1997); see also Bruce
v. Warden Lewisburg USP, 868 F.3d 170, 180 (3d Cir. 2017).
We agree with the District Court’s disposition of this case. We have previously
held that a §2255 motion is not an inadequate or ineffective vehicle for raising claims
based on Alleyne. Gardner v. Warden Lewisburg USP, 845 F.3d 99, 100 (3d Cir. 2017).
Accordingly, Murray cannot resort to § 2241 to raise this claim.
In his second claim, Murray argues that because the Virginia drug possession
statute under which he was convicted, see Va. Code Ann. § 18.2-250, contains a broader
range of drugs than the federal controlled substance schedule, the statute is divisible,
which means that the conviction cannot be used as a predicate § 851 enhancement, and
that he is, therefore, actually innocent of the sentencing enhancement. He purports to
rely on Mathis, in which the Supreme Court stressed that, for purposes of applying the
categorical (or modified categorical) approach, a statute is divisible only when it sets
forth different elements delineating separate crimes, not when it sets forth different
means of committing a single crime. See 136 S. Ct. at 2253.
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We conclude that the District Court properly rejected the petition as it related to
Murray’s “Mathis” claim, too. We have not held that innocence-of-the-sentence claims
fall within the exception to the rule that habeas claims must be brought in § 2255
motions. See, e.g., Gardner, 845 F.3d at 103. And, in any event, Murray has not shown
that Mathis constituted an intervening change in law which made available to him the
argument that he presents here, that the Virginia list of controlled substances contains a
broader range of drugs than the federal controlled substance schedule such that his
Virginia conviction cannot be used as a predicate § 851 enhancement. Murray could
have, therefore, raised this argument in his initial § 2255 motion.
Accordingly, we will affirm the judgment of the District Court.
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