                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-23-2007

Herrold v. Yost
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3528




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Recommended Citation
"Herrold v. Yost" (2007). 2007 Decisions. Paper 1430.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1430


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HLD-58        (March 2007)                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 06-3528
                                   ________________

                               GENE ALLEN HERROLD,
                                        Appellant

                                            vs.

                              JOHN YOST, WARDEN
                      ____________________________________

                    On Appeal From the United States District Court
                       For the Western District of Pennsylvania
                              (D.C. Civ. No. 06-cv-00126)
                       District Judge: Honorable Kim R. Gibson
                    _______________________________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                or Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                    March 9, 2007
         Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges.

                            (Filed March 23, 2007)
                            ___________

                            OPINION
                            ___________

PER CURIAM.

              Gene Allen Herrold, a federal inmate presently incarcerated at FCI Loretto,

appeals pro se from an order of the United States District Court for the Western District




                                             1
of Pennsylvania dismissing his habeas petition, filed pursuant to 28 U.S.C. § 2241.1 For

the reasons that follow, we will summarily affirm the judgment of the district court.

              Since 1994, Herrold has continuously tried to attack his conviction, but to

no avail. He has filed three motions to vacate his sentence under 28 U.S.C. § 2255, four

habeas petitions under § 2241, and five applications under 28 U.S.C. § 2244(b) for

authorization to file a second or successive § 2255 motion (C.A. Nos. 99-3080, 99-3854,

00-4343, 04-2718, 06-2046). On June 5, 2006, Herrold filed his current habeas action

essentially asserting the same claims he put forth in the earlier § 2244 petition. On June

30, 2006, the district court dismissed Herrold’s petition. Herrold filed a timely appeal.2

              We agree that Herrold’s petition merited a dismissal. A federal prisoner’s

challenge to the legality of his conviction and his sentence must usually be raised in a §

2255 motion, except where the remedy under § 2255 would be “inadequate or

ineffective” and the prisoner can properly resort to a § 2241 challenge. See 28 U.S.C.

§ 2255 ¶ 5; see also In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997); United States v.

Brooks, 230 F.3d 643, 648 (3d Cir. 2000)(citing United States ex rel. Leguillo v. Davis,

212 F.2d 681, 684 (3d Cir. 1954)). The exception identified in In re Dorsainvil is simply


              1
                 In 1993, Herrold was sentenced in the Middle District of Pennsylvania to
331 months for possession of a firearm by a convicted felon, 18 U.S.C. §§ 922(g) and
924(e)(1), and 60-months to run consecutively for using and carrying a firearm during
and in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1). This Court affirmed his
conviction, C.A. No. 93-7097, and the Supreme Court denied certiorari.
              2
                  We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and
2253(a).

                                              2
inapplicable to Herrold’s claims, and he may not seek relief under § 2241.

              Because Herrold’s § 2241 petition was properly dismissed and no

substantial question is presented by this appeal, we will grant appellee’s motion for

summary affirmance and will affirm the district court’s judgment. See Third Circuit LAR

27.4 and I.O.P. 10.6.




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