DLD-014                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 13-3337
                                      ___________

                           CARLOS LATTRELL MCADORY,
                                           Appellant

                                             v.

                            WARDEN LEWISBURG USP
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                             (D.C. Civil No. 3-13-cv-00406)
                      District Judge: Honorable James M. Munley
                      ____________________________________

        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
                                  October 18, 2013
        Before: SMITH, HARDIMAN and VAN ANTWERPEN, Circuit Judges

                            (Opinion filed: October 31, 2013 )
                                        _________

                                        OPINION
                                        _________

PER CURIAM

       Carlos Lattrell McAdory, proceeding pro se, appeals the United States District

Court for the Middle District of Pennsylvania’s order dismissing his petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2241, and the order denying his motion to alter or

amend the judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure.
Because this appeal does not present a substantial question, we will summarily affirm for

principally the same reasons given by the District Court.

                                              I.

       In 2006, following a jury trial in the United States District Court for the District of

Minnesota, McAdory was convicted of, inter alia, robbery in violation of the Hobbs Act.

18 U.S.C. § 1951(a). He was sentenced to multiple terms of life imprisonment. The

United States Court of Appeals for the Eighth Circuit affirmed the judgment and

conviction. See United States v. McAdory, 501 F.3d 868 (8th Cir. 2007).

       McAdory filed a timely motion to vacate pursuant to 28 U.S.C. § 2255 that was

denied. See United States v. McAdory, Civ. No. 08-6092, 2009 WL 1138646 (D. Minn.

Apr. 27, 2009). The Eighth Circuit dismissed his appeal in November 2009. In October

2012, McAdory filed a motion pursuant to Federal Rules of Civil Procedure 60(b)(6) and

60(d)(1). The District Court denied the motion because McAdory had not received

permission to file a second or successive § 2255 motion.

       McAdory, who is currently imprisoned at the United States Penitentiary at

Lewisburg, Pennsylvania, filed the underlying § 2241 petition in February 2013. In the

petition, McAdory claimed that federal prosecutors violated the Tenth Amendment and

federalism principles when they charged him with violation of the Hobbs Act. The

District Court dismissed the § 2241 petition for lack of jurisdiction because McAdory

failed to show that the remedy provided by § 2255 is inadequate or ineffective to test the

legality of his conviction. McAdory then filed a Rule 59(e) motion, requesting that the

District Court alter or amend its judgment. The District Court denied the motion and

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McAdory timely appealed, seeking review of the District Court’s order denying the

§ 2241 petition and the order denying the Rule 59(e) motion.

                                             II.

       We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). In our review of

the District Court’s order denying the § 2241 petition we will “exercise plenary review

over the District Court’s legal conclusions and apply a clearly erroneous standard to its

findings of fact.” O’Donald v. Johns, 402 F.3d 172, 173 n.1 (3d Cir. 2005). We review

an order denying a motion for reconsideration for abuse of discretion. Max’s Seafood

Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999). We may

summarily affirm if the appeal presents no substantial question. See 3d Cir. LAR 27.4;

I.O.P. 10.6.

                                            III.

       Upon review, we conclude that the District Court properly dismissed McAdory’s

§ 2241 petition. Generally, federal prisoners challenge the validity of their convictions or

sentences through motions pursuant to § 2255. See Davis v. United States, 417 U.S. 333,

343 (1974). Section 2255 expressly prohibits a district court from considering a

challenge to a prisoner’s federal sentence under § 2241 unless the remedy under § 2255 is

“inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e); see

also Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002); In re

Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). A motion under § 2255 is not “inadequate

or ineffective” simply because the petitioner cannot meet the gatekeeping requirements of

§ 2255. Dorsainvil, 119 F.3d at 251. However, we have held that § 2255 is “inadequate

                                             3
or ineffective” to test the legality of a conviction where a petitioner “is being detained for

conduct that has subsequently been rendered non-criminal by an intervening Supreme

Court decision,” and where the petitioner is otherwise barred from filing a second or

successive § 2255 motion. Id. at 252. In such a case, a petitioner may seek habeas relief

under § 2241. Id.

       Here, McAdory contended that in light of Bond v. United States, he can argue that

the Hobbs Act violates constitutional principles of federalism. See 131 S. Ct. 2355,

2365-66 (2011) (holding that a criminal defendant has standing to pursue a Tenth

Amendment challenge to the statute under which he was charged as an unjustifiable

expansion of federal law enforcement into a state-regulated domain). However, because

neither Bond nor another intervening change in the law has rendered the conduct for

which McAdory was convicted non-criminal, he cannot proceed under the approach

recognized in Dorsainvil. 1 See id. at 252. Further, McAdory’s inability to satisfy the

gatekeeping requirements of § 2255 does not render the remedy inadequate or ineffective.

Dorsainvil, 119 F.3d at 251. Accordingly, the District Court properly dismissed the

§ 2241 petition.


1
  McAdory also argued for the first time in his argument in support of his appeal that in
light of Boumediene v. Bush, 553 U.S. 723 (2008), and the Suspension Clause, he is
entitled to pursue relief under § 2241. To the extent that this argument was not waived
because it was not raised in the § 2241 petition, the argument is unavailing because the
privilege of habeas corpus is available to and was utilized by McAdory. Cf.
Boumediene, 553 U.S. at 736 (noting that the petitioners in Boumediene were enemy
combatants that were legislatively stripped of the privilege of habeas corpus). The fact
that McAdory must satisfy certain gatekeeping requirements before again pursuing relief
under § 2255 does not amount to a suspension of the writ. Felker v. Turpin, 518 U.S.
651, 664 (1996).
                                              4
      Finally, we conclude that the District Court properly denied McAdory’s motion to

alter or amend the judgment pursuant to Rule 59(e). To the extent that McAdory sought

to simply reargue claims previously raised, the District Court properly denied the Rule

59(e) motion. See Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (holding that

reconsideration pursuant to Rule 59 cannot be premised on the same arguments presented

in the complaint and motions). McAdory also argued that the Supreme Court’s holding

in McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), represented an intervening change in

controlling law that entitled him to relief under Rule 59. However, in McQuiggin the

Supreme Court held that the one-year statute of limitations in 28 U.S.C. § 2244(d)(1) can

be overcome by a showing of actual innocence, see 133 S. Ct. at 1928, and did not affect

the basis upon which McAdory’s § 2241 petition was denied. Therefore, McQuiggin is

inapposite, and the District Court properly denied the Rule 59(e) motion.

                                           IV.

      For the foregoing reasons, no substantial question is presented and we will

summarily affirm the District Court’s judgment. Murray v. Bledsoe, 650 F.3d 246, 247

(3d Cir. 2011) (per curiam); see 3d Cir. LAR 27.4; I.O.P. 10.6.




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