GLD-096                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 12-3993
                                      ___________

                                   MARK GRAPES,
                                            Appellant

                                           v.

                                WARDEN SAUERS
                      ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                            (D.C. Civil No. 3-12-cv-01442)
                     District Judge: Honorable Robert D. Mariani
                     ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    January 17, 2013

                Before: FUENTES, FISHER and ROTH, Circuit Judges

                           (Opinion filed: February 28, 2013)
                                       _________

                                       OPINION
                                       _________

PER CURIAM

      Mark Grapes, proceeding pro se, appeals the United States District Court for the

Middle District of Pennsylvania’s order dismissing Grapes’s petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2241. Because this appeal does not present a substantial


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question we will summarily affirm for principally the same reasons as given in the

District Court’s order.

                                             I.

       In 2005, Grapes pled guilty to distribution of methamphetamine pursuant to 21

U.S.C. § 841(a)(1) and use, carry, and possession of a firearm in relation to a drug

trafficking crime pursuant to 18 U.S.C. § 924(c)(1). In October 2006, the United States

District Court for the Northern District of West Virginia sentenced Grapes to 60 months

for the distribution charge and to 87 months for the firearm charge, which were to run

consecutively, for a total of 147 months in prison. Grapes did not file a direct appeal nor

a motion pursuant to 28 U.S.C. § 2255. Grapes did file a motion in the District Court

requesting sentencing transcripts in July 2007. In June 2009, the District Court denied

the motion requesting sentencing transcripts because neither an appeal nor a § 2255

motion was pending and Grapes provided no reason why he requested the transcripts.

       In October 2010, Grapes filed a motion pursuant to Rule 60(b)(6) of the Federal

Rules of Civil Procedure requesting that the District Court modify his sentence to make

the 60 months and 87 months prison terms run concurrently rather than consecutively.

The District Court denied the Rule 60(b)(6) motion. Grapes appealed the District Court’s

order denying his motion and in January 2011 the United States Court of Appeals for the

Fourth Circuit affirmed the decision.

       In July 2012, Grapes filed a petition for writ of habeas corpus pursuant to 28

U.S.C. § 2241 in the United States District Court for the Middle District of Pennsylvania.

In his petition, Smith argued that he was actually innocent of the firearm offense because

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there was no evidence that the firearm, found behind a seat in Grapes’s vehicle, was

actively employed in furtherance of his drug trafficking offense. Grapes also argued that

the District Court for the Northern District of Virginia rendered § 2255, which has a one

year limitation period, inadequate or ineffective because the court took almost two years

to rule on his motion requesting sentencing transcripts and he could not file a § 2255

motion without the transcripts.

       The District Court denied Grapes’s petition for lack of jurisdiction because Grapes

improperly challenged his conviction and sentence under § 2241. The District Court

determined that Grapes had not demonstrated that § 2255 afforded an inadequate or

ineffective remedy that would permit Grapes to challenge his conviction and sentence

through § 2241. Grapes appealed and the Clerk alerted the parties that the appeal was

being considered for possible summary action.

                                            II.

       We have jurisdiction pursuant to 28 U.S.C. §§1291 and 2253(a). We “exercise

plenary review over the District Court’s legal conclusions and apply a clearly erroneous

standard to its findings of facts.” O’Donald v. Johns, 402 F.3d 172, 173 n.1 (3d Cir.

2005). 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 Grapes’s

§ 2241 petition for lack of jurisdiction.



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       A federal prisoner’s challenge to the legality of his conviction and sentence must

be raised in a § 2255 motion. See 28 U.S.C. §2255(a). A § 2255 motion must be filed in

the sentencing court, which in this case would be the District Court for the Northern

District of West Virginia. Id. However, there is an exception to the requirement that a

conviction or sentence be challenged under § 2255 where the remedy would be

“inadequate or ineffective.” 28 U.S.C. § 2255(e); see In re Dorsainvil, 119 F.3d 245, 249

(3d Cir. 1997). This occurs “only where the petitioner demonstrates that some limitation

of scope or procedure would prevent” the petitioner from receiving adequate adjudication

of his claims. Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). The

remedy’s inefficacy, rather than a prisoner’s inability to use it, is determinative. Id. This

exception is extremely narrow and applies only in rare circumstances. See, e.g.,

Dorsainvil, 119 F.3d at 251-52. The fact that the one year period of limitation for Grapes

to file a § 2255 motion has run does not render § 2255 inadequate or ineffective. Cradle,

290 F.3d at 539.

       We agree with the District Court that Grapes has not shown that his claims could

not have been raised earlier. Although Grapes argued that the almost two-year pendency

of his motion requesting sentencing transcripts prohibited him from filing a direct appeal

or timely § 2255 motion, he has not shown what claims he can make today that he could

not have made during the one year limitation period of § 2255. We also agree with the

District Court that Grapes has not established that he acted diligently in pursuing his

claims. In sum, Grapes cannot show that his lack of sentencing transcripts entitles him to

use the safety valve provided by § 2255(e). See Dorsainvil, 119 F.3d at 251.

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       Further, we agree with the District Court that Grapes’s claim of actual innocence

does not entitle him to use the safety valve exception. His claim relied on the United

States Supreme Court’s holding in Bailey v. United States, in which the Court interpreted

§ 924(c)(1) to require “active employment of the firearm by the defendant” in order to

support a conviction. 516 U.S. 137, 142 (1995). In In re Dorsainvil, the petitioner

argued that his conduct was made noncriminal in light of Bailey, and given his inability

to proceed under § 2255 we held that he could use § 2241 to challenge his conviction for

a crime that an intervening change in the substantive law may have negated. Dorsainvil,

119 F.3d at 251. Unlike the petitioner in Dorsainvil, Grapes does not rely on an

intervening change in law to argue that his conduct is noncriminal; Bailey was decided

well before Grapes’s conviction, sentencing, and § 2255’s one-year limitation period

expired. His failure to raise his claim on direct appeal or pursuant to a § 2255 motion

does not mean that he lacked an earlier opportunity to challenge his conviction and

sentence on the ground now asserted.

                                            IV.

       In short, Grapes did not show that § 2255 is “inadequate or ineffective.”

Accordingly, the District Court did not err in dismissing his § 2241 petition. We will

affirm the District Court’s judgment. See 3d Cir. LAR 27.4; I.O.P. 10.6.




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