                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-6-2005

McKoy v. Apker
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2547




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Recommended Citation
"McKoy v. Apker" (2005). 2005 Decisions. Paper 154.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/154


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DPS-342                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                    NO. 05-2547
                       ____________________________________

                                WILLIAM MCKOY, SR.,
                                               Appellant

                                             v.

                    WARDEN CRAIG APKER, L.S.C.I. - Allenwood
                      _____________________________________

                     On Appeal From the United States District Court
                         For the Middle District of Pennsylvania
                               (D.C. Civ. No. 05-cv-00779)
                       District Judge: Honorable Sylvia H. Rambo
                     _______________________________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                 August 18, 2005

                  Before: ROTH, BARRY and SMITH, Circuit Judges

                                (Filed December 6, 2005)
                               _______________________

                                       OPINION
                               _______________________

PER CURIAM

       In 2003, William McKoy, Sr., a native and citizen of Jamaica,1 pled guilty to

possession with intent to distribute a controlled substance and criminal forfeiture in the


       1
         McKoy entered the United States in July 1985 as a nonimmigrant visitor for
pleasure.
United States District Court for the District of Nebraska. McKoy was sentenced to a term

of sixty-three months imprisonment. Although McKoy apparently did not file an appeal

from his conviction and sentence, he did file an unsuccessful motion pursuant to 28

U.S.C. § 2255 in the District Court for the District of Nebraska.

       McKoy, who is incarcerated at LSCI-Allenwood in White Deer, Pennsylvania,

filed the underlying pro se 28 U.S.C. § 2241 petition in the United States District Court

for the Middle District of Pennsylvania on April 18, 2005. In his § 2241 petition, McKoy

alleged that his rights under the Vienna Convention on Consular Relations and the United

States Constitution were violated because he never received notice of his right to contact

the Jamaican consulate after his arrest. On May 2, 2005, the District Court dismissed

McKoy’s § 2241 petition, concluding that McKoy had not shown that § 2255 is

inadequate or ineffective such that he should be allowed to proceed under § 2241. This

timely appeal followed.2 The appellee has filed a motion for summary affirmance, a

motion which should be granted if the appeal presents “no substantial question.” 3d Cir.

LAR 27.4 and I.O.P. 10.6. After a careful review of the record, we will grant the

appellee’s motion and summarily affirm the District Court’s order.

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



       2
         McKoy filed a timely motion for reconsideration of the May 2, 2005 order in the
District Court. On July 11, 2005, the District Court denied McKoy’s motion for
reconsideration. McKoy did not file a notice of appeal or an amended notice of appeal
from the July 11, 2005 order. Accordingly, our jurisdiction is limited to a review of the
District Court’s May 2, 2005 order. See Fed. R. App. P. 4(a)(4)(B)(ii).

                                             2
challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343

(1974). A federal prisoner may proceed under § 2241 only if the remedy provided by

§ 2255 is inadequate or ineffective to test the legality of his detention. See 28 U.S.C.

§ 2255; In re Dorsainvil, 119 F.3d 245, 249-51 (3d Cir. 1997). “A § 2255 motion is

inadequate or ineffective only where the petitioner demonstrates that some limitation of

scope or procedure would prevent a § 2255 proceeding from affording him a full hearing

and adjudication of his claims.” Cradle v. United States ex rel. Miner, 290 F.3d 536, 538

(3d Cir. 2002). Section 2255 is not inadequate or ineffective merely because a prior

motion has been unsuccessful or the petitioner is unable to meet the stringent gatekeeping

requirements for filing a second or successive § 2255 motion. See Okereke v. United

States, 307 F.3d 117, 120-21 (3d Cir. 2002); see also Cradle, 290 F.3d at 539.

       There is no doubt that McKoy’s claims fall within the purview of § 2255, and, as

the District Court concluded, McKoy has not demonstrated that § 2255 is “inadequate or

ineffective.” In short, McKoy’s claims could have been presented in his § 2255 motion;

raising them in a § 2241 petition amounts to nothing more than an attempt to circumvent

the gatekeeping provisions of § 2255. Finally, we reject McKoy’s argument that refusing

him relief under § 2241 amounts to an unconstitutional suspension of the writ. Cf. Felker

v. Turpin, 518 U.S. 651, 664 (1996) (AEDPA’s restrictions on successive petitions “do

not amount to a ‘suspension’ of the writ”); Swain v. Pressley, 430 U.S. 372, 381 (1977)

(holding that the Suspension Clause is violated only where habeas corpus is rendered



                                              3
“inadequate or ineffective”).

       Because this appeal presents no substantial question, we will summarily affirm the

District Court’s May 2, 2005 order.




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