2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-17-2012

McCullough v. USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-2292

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2012

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2012 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"McCullough v. USA" (2012). 2012 Decisions. Paper 272.

http://digitalcommons.law.villanova.edu/thirdcircuit_2012/272
DLD-298 NOT PRECEDENTIAL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 
2

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.
3

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,2and 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.
4

“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.