CLD-055                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 11-3959
                                      ___________

                                 LAWRENCE MAHER,
                                        Appellant

                                            v.

                             WARDEN J.T. SHARTLE
                      ____________________________________

                      Appeal from the United States District Court
                              for the District of New Jersey
                              (D.C. Civil No. 11-cv-01271)
                      District Judge: Honorable Robert B. Kugler
                      ____________________________________

                        Submitted for Possible Summary Action
                  Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                   December 1, 2011

             Before: RENDELL, HARDIMAN and ROTH, Circuit Judges

                            (Opinion filed: January 24, 2012)
                                     ___________

                              OPINION OF THE COURT
                                   ___________

PER CURIAM

      Lawrence Maher appeals pro se from the United States District Court for the

District of New Jersey’s order dismissing his habeas petition filed under 28 U.S.C.

                                            1
§ 2241. Because this appeal does not present a substantial question, we will summarily

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

                                              I.

       In 2004, Maher was convicted of a federal drug trafficking offense in the United

States District Court for the District of Maine. He was determined to be a career offender

based, in part, on a 1997 state misdemeanor drug conviction for which his sentence was

suspended. In April 2005, he was sentenced to 262 months’ imprisonment and six years

of supervised release, and the United States Court of Appeals for the First Circuit

affirmed his conviction in July 2006. United States v. Maher, 454 F.3d 13 (1st Cir.

2006). In 2008, the District Court of Maine denied Maher’s 28 U.S.C. § 2255 motion.

See Maher v. United States, Civ. No. 07-195, 2008 WL 2810194 (D. Me. Jul. 21, 2008).

Maher’s subsequent motion to modify his sentence pursuant to 18 U.S.C. § 3582 was also

unsuccessful. Then, in January 2011, the United States Court of Appeals for the First

Circuit denied Maher’s request to file a second or successive 28 U.S.C. § 2255 motion.

In doing so, it stated that the District Court’s decision to classify Maher as a career

offender was not in error. See Maher v. United States, C.A. No. 10-2440 (1st Cir. Jan.

19, 2011).

       Maher is currently confined in the Federal Correctional Institution at Fairton, New

Jersey. In March 2011, he filed a petition for a writ of habeas corpus under 28 U.S.C.

§ 2241 in the United States District Court for the District of New Jersey, claiming that the


                                              2
District Court of Maine erred by sentencing him as a career offender provision because

the sentence for his 1997 state court conviction was suspended.

       The District Court dismissed Maher’s petition for lack of jurisdiction. Maher now

appeals.

                                             II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. “We exercise plenary review

over the district court’s legal conclusions and apply a clearly erroneous standard to its

factual findings.” Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002).

       It is apparent that Maher’s petition is not viable under 28 U.S.C. § 2241, as he is

attempting to challenge the validity of his sentence. A federal prisoner can challenge his

conviction or sentence under 28 U.S.C. § 2241 if the remedy provided by 28

U.S.C. § 2255 is “inadequate or ineffective” to test the legality of his or her detention.

Cradle, 290 F.3d at 538; Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002).

This occurs “only where the petitioner demonstrates that some limitation of scope or

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

her claims under § 2255. Cradle, 290 F.3d at 538. This exception is extremely narrow

and applies only in rare circumstances. See, e.g., In re Dorsainvil, 119 F.3d 245, 251-52

(3d Cir. 1997) (applying exception where an intervening change in the law

decriminalized the conduct underlying the petitioner’s conviction and he had no other

opportunity to pursue his claim).


                                              3
       After considering Maher’s petition and submissions to this Court, we agree with

the District Court that he has failed to demonstrate that § 2255 is inadequate or

ineffective to test the legality of his detention. Although Maher would likely encounter

hurdles attempting to file another § 2255 motion in the sentencing court, we have

repeatedly held that a prisoner’s inability to meet § 2255’s gatekeeping requirements does

not render it inadequate or ineffective.1 Cradle, 290 F.3d at 538-39 (“It is the inefficacy

of the remedy, not the personal inability to use it, that is determinative.”).

       For these reasons, we conclude that this appeal presents “no substantial question,”

and will therefore summarily affirm the District Court’s judgment. See 3d Cir. L.A.R.

27.4; I.O.P. 10.6.




1
  We note that the decision on which Maher relies to support his argument that he may
proceed under § 2241 has been vacated. See Gilbert v. United States, 609 F.3d 1159
(11th Cir. 2010), vacated, Gilbert v. United States, 640 F.3d 1293 (11th Cir. 2011). In its
2011 decision, the United States Court of Appeals for the Eleventh Circuit stated that
“the savings clause of § 2255(e) does not permit a prisoner to bring in a § 2241 petition a
[sentencing] guidelines miscalculation claim that is barred from being presented in a
§ 2255 motion by the second or the successive motions bar of § 2255(h).” 640 F.3d at
1312.
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