Full Opinion (html_with_citations)

                                       PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT

             _______________________

                   No. 22-1264
             _______________________


               STEVEN A. VONEIDA,
                            Appellant

                          v.

       JOHN JOHNSON, U.S. Probation Officer

             _______________________

    On Appeal from the United States District Court
         for the Middle District of Pennsylvania
             District Court No. 1:15-cv-01911
    District Judge: Honorable Christopher C. Conner
             __________________________

     Submitted Under Third Circuit L.A.R. 34.1(a)
                November 15, 2023

Before: RESTREPO, McKEE, and SMITH, Circuit Judges
                 (Filed: December 7, 2023)

Edward J. Rymsza, III
Miele & Rymsza
125 East Third Street
Williamsport, PA 17701
             Counsel for Appellant

Stephen R. Cerutti, II
Carlo D. Marchioli
Office of United States Attorney
Middle District of Pennsylvania
Sylvia H. Rambo United States Courthouse
1501 N 6th Street, 2nd Floor
P.O. Box 202
Harrisburg, PA 17102

Samuel S. Dalke
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
       Counsel for Appellees

              __________________________

                OPINION OF THE COURT
              __________________________

                             2
SMITH, Circuit Judge.

       Several years after being convicted of transmitting
threatening communications in violation of
18 U.S.C. § 875
(c)
and filing unsuccessful motions for relief under
28 U.S.C. § 2255
, Steven Voneida filed a petition under
28 U.S.C. § 2241
asserting that
28 U.S.C. § 2255
 was inadequate to address the
issue of whether the Supreme Court’s decision in Elonis v.
United States,
575 U.S. 723
 (2015), effected an intervening
change in law that rendered his conduct no longer criminal.
The District Court initially concluded that Voneida’s claim
could not proceed under § 2241, but this Court reversed. On
remand, the District Court rejected Voneida’s claim on the
merits. Voneida appealed.

       During the pendency of Voneida’s appeal, the Supreme
Court decided Jones v. Hendrix,
143 S. Ct. 1857
 (2023), which
established that the limitations on second or successive
motions set forth in
28 U.S.C. § 2255
(h) do not make
§ 2255 “inadequate or ineffective” such that a prisoner must
pursue a remedy under § 2241. 143 S. Ct. at 1863. We write
precedentially to acknowledge that Jones abrogates our
precedent in In re Dorsainvil,
119 F.3d 245
 (3d Cir. 1997). As
a consequence of the holding in Jones, Voneida has no
recourse under § 2241. We will therefore vacate the District
Court’s Order and remand with instructions to dismiss for lack
of subject-matter jurisdiction. See Hogsett v. Lillard,
72 F.4th 819
, 821–22 (7th Cir. 2023).




                               3
  I.   Background

        In 2008, Voneida was convicted of transmitting
threatening communications in violation of
18 U.S.C. § 875
(c).
The threats in question are a series of MySpace posts that
Voneida made in 2007, shortly after the highly publicized mass
shooting at Virginia Tech. Voneida, who was a college student
at the time, expressed admiration for the Virginia Tech shooter
and stated his “wish” that other “weary violent types” would
“band together with” him and “allow everyone at schools and
universities across the nation to reap the bitter fruit of the seeds
that they have been sowing for so long.” App. 118–19.

       At trial, the jury was instructed to disregard Voneida’s
subjective knowledge or intent and to find him guilty if they
decided that “a reasonable person would interpret his statement
as a true threat.” App. 19. The jury convicted Voneida as
charged, and we affirmed. United States v. Voneida,
337 F. App’x 246
 (3d Cir. 2009) (“Voneida I”). Voneida filed several
motions to vacate, set aside, or correct his conviction and
sentence pursuant to
28 U.S.C. § 2255
, all of which were
unsuccessful.

       In October 2015, Voneida filed a petition for a writ of
habeas corpus pursuant to
28 U.S.C. § 2241
, arguing that
Elonis—which abrogated this Court’s precedent that
negligence was sufficient to support a conviction under
§ 875(c)—rendered his conduct non-criminal.

       The District Court initially determined that it lacked
jurisdiction over Voneida’s § 2241 petition because he had not
shown that § 2255 was inadequate or ineffective to test the
                                 4
legality of his sentence, and so it dismissed the petition. We
vacated and remanded, noting that “a defendant may proceed
via a § 2241 petition if a subsequent statutory interpretation
renders the defendant’s conduct no longer criminal and he did
not have an earlier opportunity to raise the claim.” Voneida v.
Att’y Gen. Pennsylvania,
738 F. App’x 735
, 737 (3d Cir. 2018)
(“Voneida II”) (per curiam) (relying on In re Dorsainvil,
119 F.3d at 251
).

        On remand, the District Court held an evidentiary
hearing to consider additional evidence relevant to Voneida’s
state of mind regarding the MySpace posts. After reviewing the
entire record, the District Court determined that “reasonable
jurors could readily” find that Voneida “acted with a
purposeful or knowing mindset as required by Elonis.” App.
137. Accordingly, the Court concluded that Voneida failed to
make the requisite showing to establish actual innocence for
the purposes of § 2241. Voneida appealed.

       After the Supreme Court had heard argument in Jones,
this Court held Voneida’s appeal curia advisari vult pending
the disposition of that case.

    II.   Jurisdiction

      The District Court exercised jurisdiction over
Voneida’s petition pursuant to
28 U.S.C. § 2241
. 1 We have

1
  When the District Court ruled on Voneida’s § 2241 petition,
it properly exercised jurisdiction under then-controlling law.
See Voneida II, 738 F. App’x at 737–38 (citing In re
Dorsainvil,
119 F.3d at 251
). As we make clear below, the
                              5
jurisdiction to review the District Court’s ruling pursuant to
28 U.S.C. § 2253
(a).

III.   Standard of Review

       We review the District Court’s legal conclusions de
novo. Randolph v. Sec’y Pa. Dep’t of Corr.,
5 F.4th 362, 372
(3d Cir. 2021). We review the District Court’s factual findings
for clear error, though we review de novo “any factual
inferences [that] it drew from the” record.
Id.

IV.    Discussion

       Two statutes provide federal prisoners with avenues for
seeking habeas corpus relief:
28 U.S.C. § 2255
 and
28 U.S.C. § 2241
. Jones, 143 S. Ct. at 1863. However, a federal prisoner
seeking to collaterally attack his sentence generally must do so
under § 2255 rather than § 2241. Id. To that end, § 2255(e) bars
a federal prisoner from proceeding under § 2241 unless the
§ 2255 remedy “is inadequate or ineffective to test the legality
of his detention.” See
28 U.S.C. § 2255
(e). Because § 2255(e)
provides habeas petitioners with a route, however narrow it
may be, for recourse under § 2241, it has been termed the
“safety valve” or “saving clause.” See, e.g., Purkey v. United
States,
964 F.3d 603, 611
 (7th Cir. 2020) (referring to
§ 2255(e) as the “safety valve”); Cordaro v. United States,
933 F.3d 232, 239
 (3d Cir. 2019) (referring to § 2255(e) as the
“saving clause”).


District Court would not have jurisdiction over Voneida’s
§ 2241 petition if it were filed in the first instance today.
                               6
       Separately, § 2255(h) bars “second or successive”
§ 2255 motions unless the motion relies on “newly discovered
evidence,” § 2255(h)(1), or “a new rule of constitutional law,”
§ 2255(h)(2). Jones, 143 S. Ct. at 1863. The question presented
in Jones was whether § 2255(h)’s limitation on second or
successive motions makes § 2255 “inadequate or ineffective,”
such that a petitioner claiming that a change in statutory
interpretation renders his conduct non-criminal could proceed
with a claim under § 2241. Id.

       Before Jones, whether the saving clause permitted a
prisoner to challenge his detention on the grounds that a change
in statutory interpretation arguably rendered the conduct
underlying his conviction non-criminal was a question of
significant debate in the courts of appeals. Two circuits held
that an intervening change in statutory interpretation could not
render § 2255 inadequate or ineffective. Prost v. Anderson,
636 F.3d 578, 588
 (10th Cir. 2011) (Gorsuch, J.); McCarthan
v. Goodwill Indus.-Suncoast, Inc.,
851 F.3d 1076
, 1099–1100
(11th Cir. 2017) (en banc).

       This Court took a different tack. In In re Dorsainvil, we
held that “a prisoner who had no earlier opportunity to
challenge his conviction for a crime that an intervening change
in substantive law may negate” can use § 2255(e) as “a safety
valve” to bring a habeas claim under § 2241. 119 F.3d at 251–
52; see also Bruce v. Warden Lewisburg USP,
868 F.3d 170, 180
 (3d Cir. 2017) (describing the In re Dorsainvil exception).

       Nine of our sister circuits agreed, holding that the saving
clause permits a prisoner to challenge his detention when a
change in statutory interpretation raises the potential that he
                                7
was convicted of conduct that the law does not make criminal,
though they based their holdings on “widely divergent
rationales.” Bruce,
868 F.3d at 180
 (citing Trenkler v. United
States,
536 F.3d 85, 99
 (1st Cir. 2008); Poindexter v. Nash,
333 F.3d 372, 378
 (2d Cir. 2003); In re Jones,
226 F.3d 328
, 333–
34 (4th Cir. 2000); Reyes-Requena v. United States,
243 F.3d 893
, 903–04 (5th Cir. 2001); Wooten v. Cauley,
677 F.3d 303
,
307–08 (6th Cir. 2012); Brown v. Caraway,
719 F.3d 583
,
586–87 (7th Cir. 2013); Abdullah v. Hedrick,
392 F.3d 957
,
963–64 (8th Cir. 2004); Marrero v. Ives,
682 F.3d 1190, 1192
(9th Cir. 2012); In re Smith,
285 F.3d 6, 8
 (D.C. Cir. 2002)).

        The Jones decision resolved the circuit split. The
Supreme Court held that § 2255(h)’s limitation on second or
successive motions does not make § 2255 “inadequate or
ineffective” such that a petitioner asserting a change in
statutory law effected after his conviction was final and after
his initial § 2255 motion was rejected should be able to proceed
with a claim under § 2241. 143 S. Ct. at 1863. The Court
reasoned that § 2255(h) “specifies the two circumstances under
which a second or successive collateral attack on a federal
sentence” via § 2241 “is available, and those circumstances do
not include an intervening change in statutory interpretation.”
Id. at 1876.

        We write precedentially to formally acknowledge what
district courts in this circuit have already recognized: Jones
abrogated In re Dorsainvil. See, e.g., Dixon v. Knight, No. 23-
cv-1764,
2023 WL 4366261
, at *1 (D.N.J. July 6, 2023);
Zuniga v. Howard, No. 20-cv-1214,
2023 WL 4306759
, at *3
(M.D. Pa. June 30, 2023). The In re Dorsainvil exception

                               8
permitted recourse to § 2241 when, inter alia, a
petitioner asserted a claim of “‘actual innocence’ based on a
change in statutory caselaw that applies retroactively . . . on
collateral review.” Bruce,
868 F.3d at 180
 (emphasis added).
The holding of Jones is directly to the contrary: Jones makes
clear that AEDPA enumerated “two—and only two—
conditions in which a second or successive” collateral attack
may proceed, 143 S. Ct. at 1868, and an intervening change in
statutory interpretation is not among them. See id.;
28 U.S.C. § 2255
(h).

        Thus, Jones means that Voneida’s appeal, which is
explicitly and necessarily premised on the In re Dorsainvil
exception, see Voneida II, 738 F. App’x at 736, must fail. After
his conviction became final, Voneida filed several motions to
vacate, amend, or correct his sentence under § 2255. Therefore,
the § 2241 petition before us is a “second or successive”
collateral attack within the meaning of § 2255(h). The legal
basis for Voneida’s petition is a change in statutory
interpretation that he argues makes his conduct non-criminal.
This is not one of the exceptions enumerated in § 2255(h).
Because Voneida has not demonstrated that § 2255 is
“inadequate or ineffective to test the legality of his detention,”
his appeal under § 2241 is barred by § 2255(e). See Jones, 143
S. Ct. at 1863, 1868.

       Voneida’s efforts to avoid this straightforward
conclusion are unavailing. First, Voneida argues that he is no
longer eligible to file a second or successive § 2255 motion
because he is no longer on supervised release and therefore
cannot satisfy the jurisdictional custody requirement of

                                9
§ 2255(a). 2 But Voneida’s inability to bring a second or
successive motion under § 2255 is of no moment: Jones
roundly rejected the argument that § 2241 is available
“whenever a prisoner is presently unable to file
a § 2255 motion.” 143 S. Ct. at 1870.

      Second, Voneida argues that Elonis and Counterman v.
Colorado,
600 U.S. 66
 (2023) 3 establish that Voneida was
convicted and sentenced under an erroneous mens rea standard
and therefore he is actually innocent of violating
18 U.S.C. § 875
(c). Voneida characterizes Elonis and Counterman as

2
  Although Voneida is no longer on supervised release, his
release does not deprive us of jurisdiction as he satisfied the
“in custody” requirement for his habeas petition when he filed
his original petition in the District Court while on supervised
release. See Carafas v. LaVallee,
391 U.S. 234, 238
 (1968)
(“conclud[ing] that under the statutory scheme, once the
federal jurisdiction has attached in the District Court, it is not
defeated by the release of the petitioner prior to completion of
proceedings on such application”); United States v. Essig,
10 F.3d 968
, 970 n.3 (3d Cir. 1993), superseded on other grounds
by rule, 3d Cir. L.A.R. 31.3 (2002), as recognized in United
States v. Turner,
677 F.3d 570, 578
 (3d Cir. 2012) (explaining
that a person on supervised release is “still ‘a prisoner in
custody’ within the meaning of § 2255”).
3
  In Counterman, the Court held that the First Amendment
requires proof of a subjective mindset in true-threats cases and
that the appropriate mens rea standard is recklessness.
600 U.S. at 73
.
                               10
new facts that raise sufficient doubt about his guilt such that
this court must adjudicate his claim because the ends of justice
so require. In other words, his argument is that Elonis and
Counterman constitute a probable showing of innocence
sufficient to excuse his procedural default under Schlup v.
Delo,
513 U.S. 298
 (1995).

       But Voneida’s reliance on Elonis, Counterman, and
Schlup is misplaced. Jones makes clear that a second or
successive motion is available only when one of the conditions
articulated in § 2255(h) is satisfied, and an intervening change
in statutory interpretation that would render the petitioner’s
conduct non-criminal is not among those conditions. 143 S. Ct.
at 1876. Indeed, Justice Jackson dissented partly on the basis
of her view that the majority was incorrect in holding that
§ 2255 does not permit second or successive collateral attacks
when a petitioner asserts legal innocence on the basis of an
intervening change in statutory interpretation. See id. at 1878
& n.1, 1882–85 (Jackson, J., dissenting). It would be very odd
indeed to conclude that Jones permits recourse to § 2241 under
such circumstances despite clear indication to the contrary in
the majority opinion and a dissent that is partly premised on a
contrary interpretation of the majority opinion. Thus,
Voneida’s arguments concerning innocence fail under Jones.

 V.    Conclusion

       For the reasons set forth above, the District Court’s
Order denying Voneida’s § 2241 petition is vacated. We will
remand with instructions to dismiss for lack of subject-matter
jurisdiction.

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