DLD-298                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 12-2292
                                      ___________

                               JERALD MCCULLOUGH,
                                              Appellant

                                            v.

                          UNITED STATES OF AMERICA
                      ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (D.C. Civil No. 12-cv-00050)
                       District Judge: Honorable Kim R. Gibson
                      ____________________________________

  Submitted on Motions to Reopen and to Proceed In Forma Pauperis, and for Possible
         Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                September 27, 2012

              Before: AMBRO, JORDAN and VANASKIE, Circuit Judges

                            (Opinion filed: October 17, 2012)
                                       _________

                                       OPINION
                                       _________

PER CURIAM

       Jerald McCullough filed a notice of appeal from an order of the United States

District Court for the Western District of Pennsylvania, which dismissed his petition for a

writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241. The Clerk of this Court
advised McCullough that the matter would be submitted to a panel of this Court for

possible summary action. However, the appeal was then dismissed because McCullough

had failed to pay the filing fee or file a motion to proceed in forma pauperis (“IFP”).

McCullough has filed a motion to reopen, in which he also makes argument in support of

his appeal, and a motion to proceed IFP. We will grant the motions, but will summarily

affirm the District Court’s judgment.1

       McCullough pleaded guilty to possessing with intent to distribute in excess of 50

grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). United

States v. McCullough, W.D. Pa. Crim. No. 07-cr-00027, dkt. #38. As part of the plea,

McCullough waived the right to file a direct appeal, and the right to file collateral

proceedings, with certain exceptions. McCullough did not appeal, but he did file a

motion to vacate sentence pursuant to 28 U.S.C. § 2255. The District Court found that

the motion (raising a claim that the government breached the plea agreement) was

permissible, and denied it on the merits. McCullough did not appeal that determination.

McCullough then filed the § 2241 petition at issue here.

       In his § 2241 petition, McCullough sought to have his conviction vacated, alleging

that the Government did not serve him, as required by 21 U.S.C. § 851(a)(1), with notice


       1
         Because McCullough filed a motion to reopen the appeal within ten days from
the date of dismissal, and showed good cause for failing to timely address the fee issue,
we will grant his motion to reopen the appeal. Third Circuit LAR Misc. 107.2(a). We
also find that McCullough is financially eligible to proceed IFP, and we grant that motion
as well.

                                              2
that it would seek to enhance his sentence because of a prior conviction. The Magistrate

Judge assigned to the case recommended dismissing the petition, because McCullough’s

challenge did not fall into any exception to his plea agreement’s waiver provisions. The

Magistrate Judge also noted that even if McCullough had not waived the right to file a

collateral petition, there was no merit to his claim, as Rule 5(b)(2)(E) and (F) of the

Federal Rules of Civil Procedure,2 and Rule 49(c) of the Western District’s local rules of

criminal procedure, provide that filing through the Court’s electronic case filing/case

management system constitutes service to parties who are registered users, and

McCullough’s trial attorneys were registered users. The Magistrate Judge further stated

that McCullough’s § 2241 petition was barred as an unauthorized second or successive

habeas petition. The District Court adopted the Report and Recommendation as its

opinion, and dismissed the § 2241 petition without prejudice to McCullough applying to

this Court for authorization to file a second or successive § 2255 motion.

       A section 2255 motion filed in the sentencing court is the presumptive means for a

federal prisoner to challenge the validity of a conviction or sentence. See Davis v. United

States, 417 U.S. 333, 343 (1974); In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997). A

habeas petitioner can seek relief under section 2241 only if the remedy provided by

section 2255 is inadequate or ineffective to test the legality of his detention. See 28

U.S.C. § 2255; In re Dorsainvil, 119 F.3d at 249-51. A section 2255 motion is not


       2
       The Magistrate Judge noted that Rule 49 of the Federal Rules of Criminal
Procedure refers the reader to the Civil Rules for rules on service of process.
                                              3
“inadequate or ineffective” merely because the petitioner cannot meet the stringent

gatekeeping requirements of section 2255, Okereke v. United States, 307 F.3d 117, 120

(3d Cir. 2002), or because the sentencing court does not grant relief, Cradle v. United

States ex rel. Miner, 290 F.3d 536, 539 (3d Cir. 2002) (per curiam). Rather, the “safety

valve” provided under section 2255 is extremely narrow and has been held to apply in

unusual situations, such as those in which a prisoner has had no prior opportunity to

challenge his conviction for a crime later deemed to be non-criminal by an intervening

change in law. See Okereke, 307 F.3d at 120 (citing In re Dorsainvil, 119 F.3d at 251).

       McCullough’s situation is not the rare one rendering section 2255 inadequate or

ineffective. McCullough has not been convicted of an offense that was later found to be

non-criminal. That McCullough has already unsuccessfully pursued a section 2255

motion in the sentencing court, and now faces a statutory bar to filing another one, does

not show the inadequacy of that remedy.

       We have considered the record and McCullough’s arguments in his motion to

reopen. Because no substantial question is presented by this appeal, we will summarily

affirm the District Court’s judgment. See Third Circuit LAR 27.4 and I.O.P. 10.6.




                                             4
