ALD-294 NOT PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

___________ 

No. 17-1812 

___________ 

DAVID M. SCATES, 

Appellant 

v. 

WARDEN LORETTO FCI 

____________________________________ 

On Appeal from the United States District Court for 

the Western District of Pennsylvania 

(D.C. Civil No. 3-14-cv-00095) 

District Judge: Honorable Kim R. Gibson 

____________________________________ 

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or 

Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 

June 29, 2017 

Before: MCKEE, JORDAN and RESTREPO, Circuit Judges

(Opinion filed: July 24, 2017) 

_________ 

OPINION∗

_________ 

PER CURIAM 

 

∗ This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent. 
David M. Scates appeals pro se from an order of the United States District Court 

for the Western District of Pennsylvania dismissing his habeas petition filed pursuant to 

28 U.S.C. § 2241. For the following reasons, we will summarily affirm the judgment of 

the District Court. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. 

In September 1998, a jury in the United States District Court for the Eastern 

District of Virginia found Scates guilty of being a felon in possession of a firearm under 

18 U.S.C. § 922(g). At sentencing in April 1999, the District Court classified Scates as a 

career offender under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), 

based on three Virginia state court burglary convictions. He was sentenced to 293 

months of incarceration. Scates’ direct appeal and his motion under 28 U.S.C. § 2255 

were unsuccessful.1

 

While confined at FCI Loretto, Scates filed a petition under 28 U.S.C. § 2241 in 

the United States District Court for the Western District of Pennsylvania. He alleged 

that his Virginia burglary convictions no longer qualify as ACCA predicate offenses. A 

Magistrate Judge recommended dismissing the petition because Scates failed to 

demonstrate that a motion under § 2255 would be an inadequate or ineffective remedy. 

Over Scates’ objections, the District Court adopted the Magistrate Judge’s Report and 

 1 We note that, pursuant to a grant of executive clemency in January 2017, Scates’ 

sentence of imprisonment now expires on January 19, 2019. In addition, we note that in 

July 2016, the United States Court of Appeals for the Fourth Circuit granted Scates’ 

application to file a second or successive § 2255 motion based on Johnson v. United

States, 135 S. Ct. 2551 (2015). It appears that the § 2255 motion is still pending in the 
Recommendation and dismissed the petition for lack of jurisdiction. Scates filed a timely 

notice of appeal. 

We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review 

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

findings of fact. See Vega v. United States, 493 F.3d 310, 314 (3d Cir. 2007). 

Generally, a motion filed under 28 U.S.C. § 2255 in the sentencing court is the 

presumptive means for a federal prisoner to challenge the validity of a conviction or 

sentence. See Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). In certain 

limited circumstances, a federal prisoner can seek relief under § 2241 in the district of 

confinement if the remedy provided by § 2255 is inadequate or ineffective to test the 

legality of his detention. 28 U.S.C. § 2255(e); see In re Dorsainvil, 119 F.3d 245, 249-51 

(3d Cir. 1997). But we have applied this “safety valve” only in the rare situation where a 

prisoner has had no prior opportunity to challenge his conviction for actions deemed to be 

non-criminal by an intervening change in law. Okereke, 307 F.3d at 120 (citing 

Dorsainvil, 119 F.3d at 251). 

The ACCA provides for an enhanced sentence “[i]n the case of a person who 

violates [18 U.S.C. § 922(g)] and has three previous convictions . . . for a violent felony or 

a serious drug offense, or both, committed on occasions different from one another.” 18 

U.S.C. § 924(e)(1). A “violent felony” is a crime that, among other things, is 

 

United States District Court for the Eastern District of Virginia. 
“punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 924(e)(2)(B). 

Scates claimed that his 1984 Virginia burglary conviction was not a “violent felony” 

because his sentence of 12 months of imprisonment did not “exceed[] one year.” In 

support of this claim, Scates relied on United States v. Simmons, 649 F.3d 237 (4th Cir. 

2011) (en banc). In that case, the Fourth Circuit, applying Carachuri-Rosendo v. Holder, 

560 U.S. 563 (2010), held that a conviction cannot qualify as a predicate felony unless the 

defendant could have, as convicted, actually received a prison sentence exceeding one 

year.2

 649 F.3d at 244-45 (stating that hypothetical aggravating factors cannot be 

considered when calculating the maximum punishment a defendant could have received 

for a prior conviction). 

Scates failed to convincingly explain why he was not eligible for a sentence 

exceeding one year for his 1984 Virginia burglary conviction. Notably, the Virginia 

statute under which Scates claims that he was convicted provides for “confinement in a 

state correctional facility for not less than one or more than twenty years or, in the 

discretion of the jury or the court trying the case without a jury, ... confine[ment] in jail 

for a period not exceeding twelve months ...” Va. Code Ann. § 18.2-91. Thus, even if a 

challenge to a “career offender” designation under the ACCA can be brought under 

 2 The Fourth Circuit held in Miller v. United States, that Simmons is retroactive. 735 

F.3d 141, 146 (4th Cir. 2013). 
§ 2241, Scates is not entitled to relief based on Simmons.

3

 Accordingly, the District 

Court properly dismissed the § 2241 petition. 

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

 3 Scates also argued that his career offender designation was improper under Taylor v.

United States, 495 U.S. 575, 588-90 (1990) (regarding application of the categorical 

approach to determine whether convictions qualify as ACCA predicate offenses). But a 

§ 2241 petition may not be used to litigate a claim, like Scates’ claim based on Taylor, 

that could have been pursued on direct appeal. See Okereke, 307 F.3d at 120.