CLD-273                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 10-2075
                                      ___________

                                 MARCUS WILLIAMS,
                                               Appellant

                                            v.

                                 PAUL SCHULTZ
                      ____________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                              (D.C. Civil No. 09-cv-04765)
                       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
                                   August 19, 2010

          Before: BARRY, FISHER and GREENAWAY, JR., Circuit Judges.

                                (Filed: September 9, 2010)
                                        _________

                                        OPINION
                                        _________

PER CURIAM

       Appellant Marcus Williams, proceeding pro se, appeals from the District Court’s

denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the

reasons that follow, we will summarily affirm the judgment of the District Court.
       Williams is presently incarcerated at the Federal Correctional Institution at Fairton,

New Jersey. In 2004, he was convicted in the United States District Court for the Eastern

District of Pennsylvania of conspiracy to distribute, and possession with intent to

distribute, in excess of 50 grams of cocaine base, and possession of a firearm in

furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c). He was

sentenced to 240 months in prison on the first two convictions, with a consecutive

60-month sentence on the firearm conviction. We affirmed his conviction and sentence

on appeal. Williams then filed a motion to vacate, set aside or correct his sentence

pursuant to 28 U.S.C. § 2255, raising two claims of ineffective assistance of counsel. His

motion was denied, and we rejected his request for a certificate of appealability.

       Two years later, Williams initiated the underlying proceedings by filing a

28 U.S.C. § 2241 petition. In it he sought to raise three claims: (1) trial counsel was

ineffective for failing to object to the use of prior misdemeanor convictions to enhance

his sentence; (2) trial counsel was ineffective for stipulating to the amount and type of

drugs in the indictment; and (3) he is “actually innocent” of his sentence in light of the

decision of the United States Court of Appeals for the Second Circuit in United States v.

Whitley, 529 F.3d 150 (2d Cir. 2008). The District Court concluded that even if it were

to recognize a freestanding “actual innocence” claim as a basis for habeas relief, Williams

could not make out such a claim, that his claims were all in the nature of claims which

should have been raised in a 28 U.S.C. § 2255 motion, and that his petition was



                                              2
essentially a second or successive § 2255 motion over which the District Court lacked

jurisdiction. Because Williams failed to allege that his petition satisfied the requirements

of 28 U.S.C. § 2244(b), the Court concluded that it would not be in the interests of justice

to transfer it to this Court for consideration under § 2244(b)(3)(A). Williams appealed.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 28 U.S.C.

§ 2253(a). We will summarily affirm the order of the District Court because this appeal

presents no substantial question. See 3d Cir. LAR 27.4 & I.O.P. 10.6. A motion pursuant

to 28 U.S.C. § 2255 is the primary means to collaterally challenge a federal conviction or

sentence. See In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997). We have held that the

District Court may not consider claims properly brought under § 2255 in a § 2241 habeas

corpus petition unless § 2255 would provide an “inadequate or ineffective” means of

relief. See Application of Galante, 437 F.2d 1164, 1165 (3d Cir. 1971). Section 2255 is

not inadequate or ineffective simply because Williams is prevented by the gatekeeping

requirements of § 2255(h) from litigating his present claims. See Cradle v. United States

ex rel. Miner, 290 F.3d 536, 538-39 (3d Cir. 2002) (per curiam) (“It is the inefficacy of

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

       Williams relies on the Second Circuit’s decision in Whitley in support of his claim

that he is “actually innocent” of his sentence and, therefore, must be entitled to seek

habeas relief to vacate it. In Whitley, the Second Circuit held that a criminal defendant

could not be sentenced to a consecutive sentence under 18 U.S.C. § 924(c) if he is subject



                                               3
to a higher mandatory minimum sentence for any other crime of which he was convicted.1

See 529 F.3d at 153. However, in United States v. Abbott, 574 F.3d 203 (3d Cir. 2009),

cert. granted, 130 S. Ct. 1284 (2010), we joined the majority of other circuits in holding,

in contrast to Whitley, that the “except” clause in § 924(c) refers only to other minimum

sentences that may be imposed for violations of § 924(c), not separate offenses. See id. at

211. Thus, even if we were to find that Williams could proceed under § 2241, which we

do not, he clearly is not entitled to any substantive relief under the law of this Circuit.

       We also agree with the District Court that § 2241 does not provide Williams with a

vehicle by which to raise his ineffective assistance of counsel claims, especially where, as

here, these claims appear to have been addressed in part in prior proceedings before this

Court. To the extent Williams seeks to file a second § 2255 motion, he must first receive

this Court’s permission by filing a completed § 2244 application. See 3d Cir. LAR 22.5.

Because Williams has failed to obtain such permission, we agree that the District Court

lacked jurisdiction to entertain his claims for relief. See Dorsainvil, 119 F.3d at 246.

       For all of these reasons, we will summarily affirm the judgment of the District

Court. See 3d Cir. LAR 27.4 & I.O.P. 10.6.




       1
         The defendant in Whitley was subject to a mandatory minimum sentence of 15
years under 18 U.S.C. § 924(e). See 529 F.3d at 152. He also was subject to a mandatory
consecutive sentence of 10 years pursuant to § 924(c). See id. The Second Circuit held
that, read literally, the “except” clause in section 924(c)(1)(A) meant that he was subject
only to the 15-year mandatory minimum of § 924(e), and that the consecutive 10-year
weapons sentence did not apply. See id. at 153.

                                               4
