Rodney Mcintosh v. USA

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: RESTREPO, BIBAS and NYGAARD, Circuit Judges. Total Pages: 4. BLD-141

Case: 17-3450

Document: 003112875528

Page: 1

BLD-141

Date Filed: 03/14/2018

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-3450
___________
RODNEY O. MCINTOSH,
Appellant
v.
UNITED STATES OF AMERICA
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 1-17-cv-01255)
District Judge: Honorable Yvette Kane
____________________________________

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
March 9, 2018
Before: RESTREPO, BIBAS and NYGAARD, Circuit Judges
(Opinion filed: March 14, 2018)
_________
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.

Case: 17-3450

Document: 003112875528

Page: 2

Date Filed: 03/14/2018

Pro se Appellant Rodney O. McIntosh is a federal inmate confined at the United
States Penitentiary, Lewisburg, Pennsylvania. He appeals from an order of the United
States District Court for the Middle District of Pennsylvania dismissing his 28 U.S.C.
§ 2241 habeas petition. We will affirm the judgment of the district court.
McIntosh’s § 2241 petition concerns his criminal case in the United States District
Court for the District of Kansas (D. Kan. 11-cr-20085). In 2011, McIntosh was charged
with nine violations of 18 U.S.C. § 111(a)(1) (forcible assault involving physical contact
with a government employee). Following a jury trial, he was acquitted of one count and
was found guilty of the remaining eight counts. The sentencing court imposed an
aggregate term of 144 months. The Court of Appeals for the Tenth Circuit affirmed the
conviction and sentence. In 2015, McIntosh filed a motion to vacate his sentence
pursuant to 28 U.S.C. § 2255. Among other things, McIntosh raised claims relating to
the jury instructions on the elements of § 111(a)(1). In 2016, the sentencing court
considered the merits of McIntosh’s arguments but denied the § 2255 motion. The Tenth
Circuit denied a certificate of appealability and dismissed McIntosh’s appeal.
In July 2017, McIntosh filed his § 2241 habeas petition in the district court.
McIntosh stated that the indictment charged him with violating 18 U.S.C. § 111(a)(1)-forcible assault involving physical contact—but the element of forcible assault was never
submitted to the jury. Thus, McIntosh contested the constitutionality of his conviction
and sentence, and he sought to be released from incarceration. The district court
dismissed McIntosh’s § 2241 habeas petition, stating that McIntosh had failed to show
that § 2255 provided an “inadequate or ineffective” remedy within the meaning of
2

Case: 17-3450

Document: 003112875528

Page: 3

Date Filed: 03/14/2018

§ 2255(e)’s savings clause. The district court noted that its dismissal was without
prejudice to McIntosh seeking authorization to file a second or successive § 2255 motion
in the sentencing court. McIntosh filed a motion for reconsideration, which the district
court considered and denied.
McIntosh appeals. The parties were notified that the appeal would be submitted
for possible summary action pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6. We
have appellate 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 any
factual findings. Cradle v. United States, 290 F.3d 536, 538 (3d Cir. 2002) (per curiam).
As explained by the district court, a § 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); Okereke v. United
States, 307 F.3d 117, 120 (3d Cir. 2002). A petitioner can seek habeas relief under
§ 2241 only if the remedy provided by § 2255 is inadequate or ineffective to test the
legality of his detention. See 28 U.S.C. § 2255(e); In re Dorsainvil, 119 F.3d 245, 249-51
(3d Cir. 1997). A § 2255 motion is not “inadequate or ineffective” merely because the
petitioner cannot meet the stringent gatekeeping requirements of § 2255, Okereke,
307 F.3d at 120, 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 a crime later deemed to be non-criminal by an

3

Case: 17-3450

Document: 003112875528

Page: 4

Date Filed: 03/14/2018

intervening change in law. See Okereke, 307 F.3d at 120 (citing In re Dorsainvil,
119 F.3d at 251).
McIntosh has not shown that such a circumstance exists in his case. In his motion
for reconsideration, McIntosh asserted that § 2255 affords an inadequate remedy in light
of the Tenth Circuit Court of Appeals’ adverse decision in his § 2255 proceeding
concerning his jury instruction claim. However, McIntosh cannot show the inadequacy
of § 2255 relief by relying upon the adverse outcome of the proceedings on his § 2255
motion; instead, he must demonstrate a limitation of scope or procedure preventing a full
adjudication of his claim under § 2255. See, e.g., Cradle, 290 F.3d at 538-39. Here, it is
clear that McIntosh already has had an opportunity to challenge the legality of his
conviction under § 2255 with respect to the submission of elements of the indictment to
the jury. “It is the inefficacy of the [§ 2255] remedy, not the personal inability to use it,
that is determinative.” Id. at 538. McIntosh’s unsuccessful pursuit of § 2255 relief on
the same or similar jury charge claim does not now render the § 2255 remedy inadequate
or ineffective for purposes of pursuing § 2241 relief.
Because McIntosh’s § 2241 habeas petition failed to satisfy § 2255(e)’s safety
valve provision, the district court lacked jurisdiction to consider it, and dismissal of the
petition was appropriate. See Robinson v. Johnson, 313 F.3d 128, 139-40 (3d Cir. 2002).
We find that no substantial question is presented by this appeal. Accordingly, we will
affirm the judgment of the District Court. See Third Circuit LAR 27.4; I.O.P. 10.6.

4