NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-3981

___________

UNITED STATES OF AMERICA

v.

CURTIS L. MCKEITHAN,

Appellant

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Criminal Action No. 00-cr-00278)

District Judge: Honorable Sylvia H. Rambo

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Submitted Pursuant to Third Circuit LAR 34.1(a)

June 7, 2011

Before: FUENTES, GREENAWAY, JR., and COWEN, Circuit Judges

(Opinion filed: June 8, 2011)

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OPINION

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PER CURIAM

Appellant appeals from an order of the District Court denying his petition under 

28 U.S.C. § 2241 for a reduction in sentence that sought a retroactive application of the
2

Fair Sentencing Act of 2010.

1

 For the reasons that follow, we will affirm. 

I.

On April 18, 2001, Curtis L. McKeithan was convicted under 21 U.S.C. § 846 of 

conspiracy to distribute and possess with intent to distribute in excess of 50 grams of 

cocaine, and related charges. He was sentenced to a total of 420 months incarceration. 

Judgment was affirmed on October 30, 2002. 

On December 31, 2003, McKeithan filed a Motion to Vacate, Set Aside, or 

Correct Sentence pursuant to 28 U.S.C. § 2255, claiming ineffective assistance of counsel 

and prosecutorial misconduct. The District Court denied the motion, and this Court 

subsequently denied McKeithan’s application for a certificate of appealability. The 

Supreme Court denied McKeithan’s petition for a writ of certiorari. 

On January 12, 2009, McKeithan filed a Motion to Reduce Sentence pursuant to 

18 U.S.C. § 3582(c)(2) and Amendments 706 and 711 to the United States Sentencing 

Guidelines (“USSG”) authorizing a reduction, effective retroactively, to the base 

guideline offense level for drug distribution and conspiracy offenses involving cocaine 

base. On August 31, 2009, the District Court denied the motion, finding that, even with 

the revised offense level, McKeithan’s criminal history category of III resulted in the 

same sentencing range to which he was exposed without the reduction. In other words, 

 

1 Although McKeithan’s motion referred to the “Fair Sentencing Act of 2009,” the 

Act McKeithan relies on is the Fair Sentencing Act of 2010, which went into effect on 

August 3, 2010. See PL 111-220, 124 Stat. 2372 (2010). We will refer to the 2010 

Act throughout this opinion. 
3

he did not qualify for a reduction because the Amendment did not affect his sentence. 

We affirmed the District Court’s denial of McKeithan’s § 3582 motion on January 28, 

2010. See United States v. McKeithan, No. 09-4014 (order entered on Jan. 28, 2010).

On September 23, 2010, McKeithan filed a pro se “Recall of Mandate” pursuant to 

28 U.S.C. § 2241, moving the District Court, pursuant to the Fair Sentencing Act of 

2010, to reduce his guideline sentence in light of the Act’s provisions changing the drug

ratio of powder to crack cocaine. See United States v. Reevey, 631 F. 3d 110, 114 (3d 

Cir. 2010). The District Court denied the petition on the basis that the legislation was not 

made retroactive. McKeithan’s appeal from that order is now before the Court. 

II.

We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over 

the District Court’s legal conclusions and apply a clearly erroneous standard to any

factual findings. See Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 

2002). 

At the outset, we agree with Appellee that McKeithan is not entitled to proceed via 

§ 2241 petition because he has not shown that § 2255 provides an inadequate or 

ineffective remedy. The presumptive means for a federal prisoner to challenge the 

validity of a conviction or sentence is a § 2255 motion filed in the sentencing court. 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 may seek relief under § 2241 only if the remedy provided 

 
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by § 2255 is “inadequate or ineffective” to test the legality of his detention. See

Dorsainvil, 119 F.3d at 249-51. A § 2255 motion is not “inadequate or ineffective” 

merely because the petitioner cannot meet the stringent gatekeeping requirements of § 

2255, Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002), or because the 

sentencing court does not grant relief, Cradle, 290 F.3d at 539. Rather, the “safety valve” 

provided under § 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 conduct 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). McKeithan’s 

petition plainly challenges the validity of his sentence, and he has not demonstrated that

§ 2255 is an inadequate or ineffective means to raise his claim. The District Court, 

therefore, properly denied his § 2241 petition.

Because McKeithan previously filed a § 2255 motion that was denied on the 

merits, he must first obtain leave from this Court in order to file a second § 2255 motion. 

See 28 U.S.C. §2244(b)(3)(A). To the extent that McKeithan’s filings or appeal can be 

construed as a request to file a second or successive § 2255 motion, he has failed to make 

the requisite showing that his motion relies on either (1) newly discovered evidence, that, 

if proven and viewed in light of the evidence as a whole, would be sufficient to establish 

that no reasonable fact finder would have found him guilty of the offense, or (2) a new 

rule of constitutional law, made retroactive to cases on collateral review by the Supreme 

Court. See 28 U.S.C. § 2255(h)(1), (2). McKeithan does not raise any claim of new 
5

evidence of innocence, and we agree with the District Court that the Fair Sentencing Act 

of 2010 has not been made retroactive by the Supreme Court to cases on collateral 

review.

2

 See Reevey, 631 F.3d 110 at 115 (3d Cir. 2010) (in affirming sentence on direct 

appeal, noting that the FSA “does not contain an express statement that the increase in the 

amount of crack cocaine triggering the five-year mandatory minimum is to be applied to 

crimes committed before the FSA’s effective date”); see also United States v. Bell, 624 

F.3d 803, 814-15 (7th Cir. 2010); United States v. Gomes, 621 F.3d 1343, 1346 (11th 

Cir. 2010) (per curiam); United States v. Carradine, 621 F.3d 575, 580 (6th Cir. 2010).

III.

Accordingly, the District Court’s order will be affirmed. 

 

2

In the argument section of McKeithan’s brief, he makes an additional argument that the 

District Court should have adjusted his offense level downward because the Pre-Sentence 

Report overstated the seriousness of his criminal history and he did not merit career 

offender status. We do not generally consider arguments raised for the first time on 

appeal. Delaware Nation v. Pennsylvania, 446 F.3d 410,416 n.9 (3d Cir. 2006). To the 

extent that we can construe this to be a claim raised in an application for permission to 

file a second or successive petition under § 2255, it does not meet either of the statutory 

criteria required to obtain authorization. See 28 U.S.C. § 2255(h)(1), (2).