Jeffrey Holland v. WARDEN CANAAN USP On Appeal from the United States District Court for the Middle…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-3240
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JEFFREY HOLLAND,
Appellant
v.
WARDEN CANAAN USP
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3-17-cv-01301)
District Judge: Honorable Matthew W. Brann
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 23, 2024
Before: KRAUSE, BIBAS, and AMBRO, Circuit Judges
(Filed: October 17, 2024)
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OPINION*
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* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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KRAUSE, Circuit Judge.
Appellant Jeffrey Holland comes before us again after the remand of his last
petition pursuant to 28 U.S.C. § 2241. But between his last appeal and this one, the
Supreme Court decided Jones v. Hendrix, 599 U.S. 465 (2023), depriving us of
jurisdiction over a petition in this posture. We will therefore remand with instructions to
dismiss.
I. DISCUSSION1
When Holland last appeared before us in 2021, our then-existing precedent
interpreted the savings clause in 28 U.S.C. § 2255(e) to preserve access to § 2241
petitions in circumstances like his, in which a prisoner (a) had already filed a § 2255
petition, (b) did not fit the statutory criteria that would permit him to file another, and (c)
sought to benefit from an intervening statutory decision (in Holland’s case, Watson v.
United States, 552 U.S. 74 (2007)) that rendered his conduct non-criminal. See In re
Dorsainvil, 119 F.3d 245 (3d Cir. 2002), abrogated by Jones, 599 U.S. at 477, as
recognized in Voneida v. Johnson, 88 F.4th 233, 235 (3d Cir. 2023).
In Jones, however, the Supreme Court abrogated that precedent and held that Ҥ
2255(e)’s saving clause does not permit a prisoner asserting an intervening change in
statutory interpretation to circumvent AEDPA’s restrictions on second or successive §
1 On appeal of a district court’s dismissal of a § 2241 petition, we review legal
conclusions de novo and factual findings for clear error. See Cradle v. United States ex
rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002).

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2255 motions by filing a § 2241 petition.” 599 U.S. at 471. Thus, Jones requires the
dismissal of Holland’s petition viewed as a § 2241 petition.
Recognizing as much, Holland requests, instead, that “the Court construe [his]
Petition as a § 2255 motion,” arguing that the revised criminal history calculation that
would apply under Watson and evidence about a co-conspirator’s criminal history
constitute “newly discovered evidence,” permitting him to meet the criteria of § 2255(h)
and proceed with a second petition. Reply Br. 13–14. But Holland makes this argument
for the first time in his Reply Brief, and “it is well-settled in this court that ‘an appellant’s
failure to identify or argue an issue in his opening brief constitutes waiver of that issue on
appeal.’” In re Suprema Specialties, Inc. Sec. Litig., 438 F.3d 256, 286 n.17 (3d Cir.
2006) (quoting United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005)); see also Fed.
R. App. P. 28(a)(5); L.A.R. 28.1(a)(1).
True, the waiver rule is “one of discretion rather than jurisdiction,” Barefoot
Architect, Inc. v. Bunge, 632 F.3d 822, 834 (3d Cir. 2011), and we may excuse the
omission considering “whether there is some excuse for the failure to raise the issue in
the opening brief; how far the opposing party would be prejudiced; and whether failing to
consider the argument would lead to a miscarriage of justice or undermine confidence in
the judicial system,” United States v. Albertson, 645 F.3d 191, 195 (3d Cir. 2011)
(quoting In re Kane, 254 F.3d 325, 331 (1st Cir. 2001)). Here however, even assuming
the second factor cuts in Holland’s favor because the Government would not be
significantly prejudiced, the other two factors cut against him.

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As to the first, Holland does not identify, and the record does not suggest, any
excuse for the failure to raise the issue. See id. (observing that if the “basis” for a certain
argument “already exist[s]” at the time the opening brief is filed, this factor “does not cut
against waiver”). And, as to the third, declining to excuse the waiver would not appear to
make any difference to Holland’s sentence, let alone constitute a “miscarriage of justice,”
because the sentence at issue in this petition is concurrent to two consecutive and
unchallenged life sentences. Id.
In sum, Holland’s petition is properly considered a § 2241 petition and, as such,
must be dismissed under Jones. See Voneida, 88 F.4th at 235.
II. CONCLUSION
For the foregoing reasons, we will vacate and remand with instructions that
Holland’s petition be dismissed.

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