DLD-183                                           NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 15-3458
                                      ___________

                             DONALD G. JACKMAN, JR.,
                                           Appellant

                                             v.

                              WARDEN FORT DIX FCI
                       ____________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                         (D.C. Civil Action No. 1:14-cv-01799)
                       District Judge: Honorable Noel L. Hillman
                      ____________________________________

     Submitted for a Decision on the Issuance of a Certificate of Appealability, and
           for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
        Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                    March 17, 2016

      Before: CHAGARES, GREENAWAY, JR., and SLOVITER1, Circuit Judges

                               (Opinion filed: May 2, 2016)
                                       _________

                                        OPINION*
                                        _________


1
  The Honorable Dolores K. Sloviter participated in the decision in this case. Judge
Sloviter assumed inactive status on April 4, 2016 after the submission date, but before the
filing of the opinion. This opinion is filed by a quorum of the panel pursuant to 28
U.S.C. § 46(d) and Third Circuit I.O.P. Chapter 12.
*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

       Federal prisoner Donald G. Jackman, Jr., appeals pro se from the orders of the

United States District Court for the District of New Jersey (“the DNJ”) dismissing his

third habeas petition for lack of jurisdiction and denying his motion to alter or amend that

dismissal. For the reasons that follow, we will summarily affirm both orders.

                                             I.

       In 2000, a grand jury in the United States District Court for the Western District of

Pennsylvania (“the WDPA”) returned a two-count indictment against Jackman. The first

count charged him with violating 18 U.S.C. §§ 922(g)(1) and 924(e)(1) by being a felon

in possession of firearms, while the second count charged him with violating 26 U.S.C.

§§ 5861(d) and 5871 by possessing an unregistered destructive device. Jackman pleaded

guilty to the first count and a jury found him guilty of the second count. After

determining that Jackman was subject to a sentencing enhancement under the Armed

Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), the WDPA sentenced him to 262

months in prison. We affirmed that judgment. See United States v. Jackman, 72 F.

App’x 862, 863 (3d Cir. 2003).

       Thereafter, Jackman moved the WDPA to vacate, set aside, or correct his sentence

pursuant to 28 U.S.C. § 2255, raising dozens of claims. The WDPA denied § 2255 relief,

concluding that each of his claims had already been litigated, was procedurally defaulted,



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and/or was meritless. We then denied a certificate of appealability (“COA”). See C.A.

No. 07-1023.

       Later, while incarcerated in a federal prison in Ohio, Jackman filed a habeas

petition in the United States District Court for the Northern District of Ohio (“the

NDOH”) pursuant to 28 U.S.C. § 2241. That petition claimed, inter alia, that he was

actually innocent of being a felon in possession of firearms. The NDOH dismissed the

petition, concluding that Jackman had failed to show that a § 2255 motion was

inadequate or ineffective to test the legality of his detention. Jackman moved to alter or

amend that dismissal, but the NDOH denied that motion. The United States Court of

Appeals for the Sixth Circuit subsequently affirmed the NDOH’s rulings in an

unpublished order.

       After Jackman was transferred to a federal prison in New Jersey, he filed a second

habeas petition, this time in the DNJ. His second petition reiterated his actual innocence

claim and also alleged, inter alia, that he had not been appointed competent counsel in his

criminal case. The DNJ dismissed that petition — essentially echoing the reasoning of

the NDOH — and later denied Jackman’s motion to alter or amend that dismissal. We

then affirmed the DNJ’s two orders. See Jackman v. Shartle, 535 F. App’x 87, 89-90 &

n.6 (3d Cir. 2013) (per curiam).




                                             3
       Undeterred, in 2014, Jackman filed his third habeas petition.2 This new petition,

which was filed in the DNJ, claimed that he was actually innocent of both of his criminal

counts, and that a sentencing enhancement should not have been applied to him because

his three prior drug offenses did not actually qualify as predicate convictions under

ACCA. On January 7, 2015, the DNJ dismissed the petition for lack of jurisdiction,

explaining that Jackman had once again failed to demonstrate that a § 2255 motion was

inadequate or ineffective to test the legality of his detention. Jackman timely moved the

DNJ to alter or amend that dismissal, but the DNJ denied this motion in an order entered

on September 28, 2015. This timely appeal followed.

                                            II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a).3

In reviewing the DNJ’s dismissal of Jackman’s third habeas petition, we exercise plenary

review over the DNJ’s legal conclusions and review its factual findings for clear error.

See Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002) (per curiam).

We review the DNJ’s denial of his motion to alter or amend for abuse of discretion,

except with respect to matters of law, over which our review is plenary. See Addie v.



2
  Jackman styled this petition as being brought under Article I, Section 9, Clause 2 of the
United States Constitution. However, for substantially the reasons given by the DNJ, that
court properly treated the petition as being brought under § 2241.
3
  Jackman does not need a COA to proceed with this appeal. See United States v.
Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000) (en banc), abrogated on other grounds by
Gonzalez v. Thaler, 132 S. Ct. 641 (2012).

                                             4
Kjaer, 737 F.3d 854, 867 (3d Cir. 2013). We may take summary action if this appeal

fails to present a substantial question. See 3d Cir. I.O.P. 10.6.

       A § 2255 motion is the presumptive means by which a federal prisoner can

collaterally attack the validity of his conviction or sentence. See Okereke v. United

States, 307 F.3d 117, 120 (3d Cir. 2002). A federal prisoner may challenge the validity

of his conviction or sentence via a § 2241 petition only if he establishes that a § 2255

motion would be “inadequate or ineffective to test the legality of his detention.” 28

U.S.C. § 2255(e); see Cradle, 290 F.3d at 538. The “inadequate or ineffective” exception

applies in rare circumstances only, such as when a federal prisoner had “no prior

opportunity to challenge his conviction for a crime that an intervening change in

substantive law could negate with retroactive application.” Okereke, 307 F.3d at 120

(citing In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997)). A § 2255 motion is not

inadequate or ineffective merely because relief under § 2255 was previously denied or

the federal prisoner cannot meet the gatekeeping requirements for filing a second or

successive § 2255 motion. Cradle, 290 F.3d at 539. “It is the inefficacy of the remedy,

not the personal inability to use it, that is determinative.” Id. at 538.

       We agree with the DNJ that this case is not one of the rare instances in which a

§ 2255 motion would be inadequate or ineffective. Jackman does not allege that an

intervening change in law decriminalized the conduct for which he was convicted.

Additionally, the claims in his third habeas petition, none of which appears to hinge on

new law or evidence, could have been raised during his criminal proceedings and/or in
                                               5
his first § 2255 motion. In fact, he did raise at least one of these claims (his claim that he

is actually innocent of being a felon in possession of firearms) in both a 2002 motion to

dismiss the indictment and his first § 2255 motion; however, the WDPA rejected that

claim. That Jackman’s first § 2255 motion was denied, and that he may be unable to

raise his current claims in a second or successive § 2255 motion, does not render § 2255

inadequate or ineffective. Accordingly, we find no error in the DNJ’s decision to dismiss

his third habeas petition, and we conclude that the DNJ acted within its discretion in

denying his motion to alter or amend that order.

       Because this appeal does not present a substantial question, we will summarily

affirm the DNJ’s January 7, 2015 and September 28, 2015 orders.




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