CLD-224                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 11-1929
                                      ___________

                             DWAYNE LARCEL BROWN,
                                             Appellant

                                            v.

                              R. MARTINEZ, Warden
                      ____________________________________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                               (D.C. Civil No. 11-cv-00384)
                    District Judge: Honorable Christopher C. Conner
                      ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     June 30, 2011

              Before: RENDELL, FUENTES and SMITH, Circuit Judges

                             (Opinion filed: August 5, 2011)
                                       _________

                                       OPINION
                                       _________

PER CURIAM

      Appellant Dwayne Larcel Brown, proceeding pro se, appeals from the District

Court’s dismissal 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.


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       Brown is presently incarcerated at the Federal Correctional Institution at

Allenwood, Pennsylvania. In 2004, he pled guilty to bank robbery in the United States

District Court for the Middle District of Florida. He was sentenced as a career offender

to 170 months in prison, followed by supervised release. His direct appeal was dismissed

by the United States Court of Appeals for the Eleventh Circuit based on an appeal waiver

clause in his plea agreement. Brown subsequently filed a motion to vacate, set aside or

correct his sentence pursuant to 28 U.S.C. § 2255, which was denied.

       Brown then filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2241 in the United States District Court for the Middle District of Pennsylvania, where

he was imprisoned. The petition was dismissed, and Brown did not appeal. Brown

returned to the Middle District of Florida, where he attempted to pursue various other

post-judgment remedies. When those were unsuccessful, he initiated the underlying

proceedings by filing a second 28 U.S.C. § 2241 petition. In it he sought to raise a

challenge to his sentence which had not previously been made. Brown alleged that he

was wrongly designated a career offender based on a clerical error in a state court

judgment. Specifically, he averred that in 1997, he was charged with second degree

assault and battery, but pled guilty to the lesser offense of robbery and assault. He stated

that he informed trial counsel of this information during his federal sentencing

proceeding but counsel took no action.

       The District Court held that the relief Brown sought might be available to him via

a 28 U.S.C. § 2255 motion filed in the district of sentencing. See Okereke v. United

States, 307 F.3d 117, 120 (3d Cir. 2002); Application of Galante, 437 F.2d 1164, 1165

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(3d Cir. 1971). However, since Brown had already filed such a motion, he would have to

meet the requirements of 28 U.S.C. § 2244 in order to be able to file a second or

successive § 2255 motion. See 28 U.S.C. § 2255(h). Brown readily admitted that he

could not overcome this hurdle. Because Brown could not demonstrate that § 2255

provided an inadequate or ineffective remedy, the District Court dismissed his petition.

See Galante, 437 F.2d at 1165. Brown 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 Galante, 437 F.2d at 1165.        Section 2255 is not

inadequate or ineffective simply because Brown 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.”). Furthermore, as

the District Court noted, Brown must seek relief in the sentencing court -- in this case, the

Middle District of Florida, and not in the Middle District of Pennsylvania. See Galante,

437 F.2d at 1165.



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      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.




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