                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-20-2007

McCoy v. Miner
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2256




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Recommended Citation
"McCoy v. Miner" (2007). 2007 Decisions. Paper 566.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/566


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CLD-327                                                      NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO. 07-2256
                                  ________________

                                 REGGIE L. MCCOY,
                                          Appellant

                                           v.

               JONATHAN C. MINER; UNITED STATES MARSHALS

                    _______________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                               (D.C. Civ. No. 07-cv-00342)
                    District Judge: Honorable William W. Caldwell
                    _______________________________________

                      Submitted For Possible Summary Action
                    Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                    July 26, 2007

           Before: RENDELL, SMITH AND JORDAN, CIRCUIT JUDGES


                                (Filed August 20, 2007)
                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Reggie McCoy appeals from the District Court’s order dismissing for lack of

jurisdiction his habeas corpus petition filed pursuant to 28 U.S.C. § 2241. McCoy’s
appeal presents no substantial question, so we will summarily affirm the District Court’s

order.

         McCoy was convicted of one count of possession of cocaine with intent to

distribute and two counts of conspiracy to do the same, and received a sentence of life

imprisonment. (Pet., “Exhibit A,” at 6-7.) After an unsuccessful direct appeal to the

Court of Appeals for the Eleventh Circuit and the denial of his petition for a writ of

certiorari, in 1995 McCoy began a series of collateral attacks on his conviction with a

motion pursuant to 28 U.S.C. § 2255 filed in the Middle District of Florida. Its denial

was affirmed by the Eleventh Circuit, which has repeatedly denied McCoy’s requests to

file a second § 2255 motion. As an inmate of the United States Penitentiary in

Allenwood, Pennsylvania, McCoy also filed two petitions in 2006 in the Middle District

of Pennsylvania pursuant to § 2241 before filing the present petition, and has sought relief

in the Fifth Circuit and the Northern District of California as well. (Rep. and Rec. at 2-3.)

         McCoy’s petition requests relief on three grounds: first, that he was not advised of

his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966); second, that he was

denied his rights under the Fifth and Sixth Amendments to the United States Constitution

by an alleged constructive amendment to the indictment that clarified the quantity of

cocaine possessed by McCoy; and third, that the trial court lacked jurisdiction because of

the indictment’s alleged deficiency. (Pet. at 2-6.) The District Court summarily

dismissed the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in



                                               2
the United States District Courts 1 , holding that it lacked jurisdiction because McCoy had

no grounds to file a petition pursuant to § 2241 instead of § 2255. We now affirm.2

       The Eleventh Circuit has refused repeatedly to certify the § 2255 motions filed by

McCoy after his first, and this has kept him from obtaining review of these later filings.

See 28 U.S.C. § 2255 (requiring movant to obtain certification from “a panel of the

appropriate court of appeals” in order to obtain review of a “second or successive” § 2255

motion). But these denials do not permit McCoy to bypass § 2255, “the presumptive

means” by which to bring claims such as McCoy’s, Okereke v. United States, 207 F.3d

117, 120 (3d Cir. 2002), in favor of § 2241. Only a federal prisoner who can show that

the § 2255 “remedy by motion [would be] inadequate to test the validity of his

conviction” may proceed instead with a § 2241 petition. See 28 U.S.C. § 2255.

       But to render § 2255 “inadequate or ineffective,” a petitioner must “show that a

limitation of scope or procedure would prevent a § 2255 proceeding from affording him a

full hearing and adjudication of his wrongful detention claim.” Okereke, 307 F.3d at 120.

By contrast, “‘a petition under § 2255 cannot become inadequate or ineffective, thus

permitting the use of § 2241, merely because a petitioner cannot meet the . . . second or

successive requirements,’” as this would contravene Congress’s intent in enacting those


  1
   These rules may be applied to § 2241 petitions. See Rule 1(b), Rules Governing
Section 2254 Cases in the United States District Courts.
  2
   We have jurisdiction to review the final decision of the District Court under 28 U.S.C.
§ 1291, and exercise plenary review. Cradle v. United States, 290 F.3d 536, 538 (3d Cir.
2002).

                                             3
requirements. United States v. Brooks, 230 F.3d 643, 648 (3d Cir. 2002)(quoting United

States v. Barrett, 178 F.3d 34, 50 (1 st Cir. 1999)).

       In the present case, McCoy cannot show that the remedy under § 2255 is

inadequate or ineffective. The Eleventh Circuit’s denials of his requests for certification

do not support such a showing, as they do not give rise to a cognizable “limitation of

scope or procedure,” but instead reflect the appropriate operation of the certification

procedure as a “screening” mechanism to counter repeated filing of defective petitions.

See Felker v. Turpin, 518 U.S. 651, 664 (1996). We therefore conclude that the District

Court properly dismissed McCoy’s habeas petition for lack of jurisdiction, and that his

appeal presents no substantial question. See Third Circuit L.A.R. 27.4, I.O.P. 10.6. We

will summarily affirm the District Court’s order.




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