DLD-018 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 23-2039 ___________

KEITH LAMONT TUTT, Appellant

v.

WARDEN ALLENWOOD FCI ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 1:23-cv-00631) District Judge: Honorable Jennifer P. Wilson ____________________________________

Submitted for Possible Dismissal Pursuant to

(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 October 26, 2023

Before: JORDAN, PORTER, and PHIPPS, Circuit Judges

(Opinion filed: November 3, 2023) _________

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. Keith Lamont Tutt, a federal prisoner who is proceeding pro se, appeals from an

order dismissing his petition for a writ of habeas corpus under

. For the

following reasons, we will summarily affirm.

Tutt pleaded guilty in the United States District Court for the Eastern District of

North Carolina to conspiracy to distribute and possess with intent to distribute five

kilograms or more of cocaine, see

(a)(1), (b)(1)(A), 846, and possession

of a firearm in furtherance of a drug trafficking offense, see

(c)(1)(A)(i).

He was sentenced to 192 months of imprisonment. The United States Court of Appeals

for the Fourth Circuit affirmed. United States v. Tutt,

, 767 (4th Cir.

Mar. 15, 2018) (not precedential). Tutt next filed a motion under

. The

District Court denied that motion on the merits and the Fourth Circuit Court of Appeals

denied a certificate of appealability. United States v. Tutt,

(4th Cir.

Mar. 23, 2021) (per curiam) (not precedential).

While incarcerated at FCI Allenwood, Tutt filed a petition under

in the United States District Court for the Middle District of Pennsylvania, alleging that

his § 924(c) conviction must be vacated. (ECF 1 & 2.) In particular, Tutt claimed that

his drug conspiracy conviction is an inchoate offense that can no longer serve as a

predicate “drug trafficking crime” for his § 924(c) conviction. In support of that

argument, he relied on United States v. Dupree, where the United States Court of Appeals

2 for the Eleventh Circuit held that inchoate crimes, such as attempts and conspiracies, do

not qualify as predicate offenses for purposes of the career offender provision of the

United States Sentencing Guidelines.

(11th Cir. 2023) (en banc); see

also United States v. Nasir,

(3d Cir. 2020) (en banc) (same). The

District Court dismissed the § 2241 petition, holding that his “claim is not premised on

any intervening change in substantive law that would negate the criminal nature of his

conduct so that his conviction is no longer valid.” (ECF 6, at 5.) Tutt timely appealed.

(ECF 7.)

We have appellate jurisdiction pursuant to

. In reviewing the

District Court's dismissal of the § 2241 petition, we exercise plenary review over its legal

conclusions and review any factual findings for clear error. See Cradle v. United States

ex rel. Miner,

(3d Cir. 2002) (per curiam). We may summarily affirm

a District Court’s decision “on any basis supported by the record” if the appeal fails to

present a substantial question. Murray v. Bledsoe,

(3d Cir. 2011) (per

curiam).

We need not reach the merits of Tutt’s underlying claim, which seeks to set aside

his conviction, because we conclude that it must be brought in a motion pursuant to

. Indeed, attacks on the validity of a conviction or sentence generally must

be asserted under § 2255. See Okereke v. United States,

(3d Cir.

3 2002). But because Tutt’s initial § 2255 motion was denied on the merits, he cannot file

a second or successive § 2255 motion unless he relies on either “newly discovered

evidence,” § 2255(h)(1), or “a new rule of constitutional law,” § 2255(h)(2). His claim,

which was based on a more favorable interpretation of statutory law adopted after his

conviction became final, did not satisfy either of those requirements.

Therefore, Tutt sought to proceed under the “saving clause” contained in

§ 2255(e), which permits a prisoner to seek relief under § 2241 when a § 2255 motion

would be “inadequate or ineffective to test the legality of [the petitioner’s] detention.”

(e). The Supreme Court recently held the saving clause “preserves

recourse to § 2241 in cases where unusual circumstances make it impossible or

impracticable to seek relief in the sentencing court, as well as for challenges to detention

other than collateral attacks on a sentence.” Jones v. Hendrix,

(2023).

But the saving clause “does not permit a prisoner asserting an intervening change in

statutory interpretation to circumvent [the] restrictions on second or successive § 2255

motions by filing a § 2241 petition.” Id. at 471. Indeed, the “inability of a prisoner with

a statutory claim to satisfy” the requirements for filing a second or successive § 2255

motion “does not mean that he can bring his claim in a habeas petition under the saving

clause. It means that he cannot bring it at all.” Id. at 480.

4 For the foregoing reasons, we conclude that this appeal does not present a

substantial question. Accordingly, we will summarily affirm the District Court’s

judgment. 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

5