DLD-032                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               _________________

                                     No. 12-3134
                                  _________________

                                   CHARLES SMITH,
                                             Appellant

                                            v.

                              DONNA ZICKEFOOSE
                      ____________________________________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                            (D.C. Civil No. 1-12-cv-03270)
                      District Judge: Honorable Renee M. Bumb
                     ____________________________________

        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
                                  November 8, 2012

              Before: AMBRO, SMITH and CHAGARES, Circuit Judges

                           (Opinion filed: December 11, 2012)
                                  _________________

                                      OPINION
                                  _________________
PER CURIAM

      Charles Smith, proceeding pro se, appeals the United States District Court for the

District of New Jersey’s order dismissing Smith’s petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2241. Because this appeal does not present a substantial question
we will summarily affirm for principally the same reasons as given in the District Court’s

order.

                                              I.

         In 2006, Smith pleaded guilty to travel in interstate commerce for the purpose of

engaging in illicit sexual conduct. The United States District Court for the Middle

District of Pennsylvania sentenced Smith to 120 months in prison and Smith appealed.

On February 26, 2008, this Court affirmed the judgment of the District Court. Smith did

not petition the United States Supreme Court for a writ of certiorari. Smith is currently

imprisioned at Federal Correctional Institute Fort Dix in New Jersey.

         On March 9, 2011, Smith filed a motion to vacate pursuant to 28 U.S.C. § 2255.

In the motion, Smith argued that his trial counsel was ineffective and that he had newly

discovered evidence relating to his psychological problems and mental ability. The

District Court determined that the motion was untimely because it was filed outside the

one-year statute of limitations period, but granted the parties an opportunity to brief

whether equitable tolling should be granted. In response, Smith filed a motion for

reconsideration that the District Court construed as his brief addressing the timeliness

issue. The District Court, after review of Smith’s arguments, dismissed the § 2255

motion as untimely and declined to issue a certificate of appealability. Smith moved for

reconsideration in May 2012, and the District Court, after explaining that Smith

essentially reasserted the same arguments as in his previous motion, denied relief in July

2012.
                                              2
          Smith filed the instant petition for a writ of habeas corpus on May 31, 2012, in the

United States District Court for the District of New Jersey. In his petition Smith raised

claims of ineffective assistance of counsel and newly discovered evidence relating to his

psychological and mental status, similar to those in his § 2255 motion. The District

Court dismissed the petition for lack of jurisdiction because Smith failed to show that 28

U.S.C. § 2255 afforded an inadequate or ineffective remedy that would then permit Smith

to challenge his conviction and sentence through 28 U.S.C. § 2241. Smith 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. L.A.R. 27.4; I.O.P. 10.6.

                                               III.

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

§ 2241 petition for lack of jurisdiction. Apart from whether Smith’s petition was

successive pursuant to 28 U.S.C. § 2244(a), it is apparent that his claims are not viable

under § 2241.


                                                3
       A federal prisoner’s challenge to the legality of his conviction and sentence must

be raised in a § 2255 motion, except where the remedy under § 2255 would be

“inadequate or ineffective.” 28 U.S.C. § 2255; 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 or her 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. The

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

Dorsainvil, 199 F.3d at 251-52. The fact that Smith previously filed a § 2255 motion that

was denied as untimely, and thus faces the strict gatekeeping requirements that apply to

second or successive § 2255 motions, does not serve to make § 2255 inadequate or

ineffective. See id. at 251. Moreover, Smith’s assertion that his mental and

psychological problems coupled with ineffective assistance of counsel caused him to

enter a plea without full understanding of its effects does not present the “unusual

circumstance” in which a § 2255 motion is inadequate or ineffective. See id. (noting that

a § 2255 motion would be inadequate or ineffective where an intervening change in

substantive law made the crime for which the petitioner was convicted non-criminal).

                                                  IV.

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

Accordingly, the District Court did not err in dismissing his § 2241 petition for lack of

jurisdiction. For essentially the reasons set forth by the District Court, we will summarily
                                              4
affirm the District Court’s order dismissing Smith’s § 2241 petition. See 3d Cir. L.A.R.

27.4; I.O.P. 10.6.




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