DLD-238 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-2292
___________
GEORGE A. WINKELMAN,
Appellant
v.
FRANCISCO J. QUINTANA
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 08-cv-00354)
Magistrate Judge: Honorable Susan Paradise Baxter
____________________________________
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
July 14, 2011
Before: FISHER, BARRY and VAN ANTWERPEN, Circuit Judges.
(Filed: July 29, 2011)
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OPINION
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PER CURIAM
George A. Winkelman appeals pro se from an order dismissing his petition filed
under 28 U.S.C. § 2241. The Government has moved for summary affirmance. Because
no substantial question is presented by this appeal, we will summarily affirm the order of
the District Court.
In 2003, Winkelman was sentenced to 720 months’ imprisonment for drug-
trafficking and firearms convictions in the Middle District of Pennsylvania. In 2006, this
Court affirmed the conviction, but vacated the sentence and remanded for resentencing
under United States v. Booker, 543 U.S. 220 (2005). On remand, Winkelman was
sentenced to 480 months’ imprisonment. Winkelman appealed, but moved to withdraw
the appeal, which this Court granted.
In 2007, Winkelman filed a motion to vacate his sentence pursuant to 28 U.S.C.
§ 2255 in the Middle District of Pennsylvania. Winkelman’s § 2255 motion raised
twenty-seven claims. Winkelman attempted to amend his § 2255 motion to include the
argument that he did not use a firearm under 18 U.S.C. § 924(c)(1)(A) based on the
Supreme Court’s opinion in Watson v. United States, 552 U.S. 74 (2007). The District
Court denied the § 2255 motion, finding the claims meritless and/or procedurally
defaulted. The District Court also denied Winkelman’s amendment because Winkelman
failed to file a brief pursuant to M.D. Pa. R. 7.5 and declined the District Court’s
invitation to withdraw his original § 2255 motion and file an all-inclusive motion. This
Court denied his request for a certificate of appealability. C.A. No. 08-1932.
In 2008, Winkelman filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241 in the Western District of Pennsylvania, his district of confinement.
Winkelman alleged his sentence should be vacated and the case should be remanded for
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resentencing because he is actually innocent of the firearms offenses based on Watson v.
United States, and his sentence is invalid under United States v. Whitley, 529 F.3d 150
(2d Cir. 2008). The District Court dismissed the petition for lack of subject matter
jurisdiction. Winkelman appeals.
We have jurisdiction under 28 U.S.C. §1291. We exercise plenary review over the
District Court's legal conclusions, and we apply a clearly erroneous standard to any
factual findings. Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002)
(per curiam).
“Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which
federal prisoners can challenge their convictions or sentences that are allegedly in
violation of the Constitution.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir.
2002). A petitioner, however, may challenge a conviction pursuant to § 2241 where a
§ 2255 motion would be inadequate or ineffective. In re Dorsainvil, 119 F.3d 245, 249
(3d Cir. 1997). Lack of success in a previous § 2255 motion, without more, does not
render § 2255 inadequate or ineffective, nor do AEDPA's restrictions on filing successive
§ 2255 motions. See Cradle, 290 F.3d at 539. “It is the inefficacy of the remedy, not the
personal inability to use it, that is determinative.” Id. at 538. This Court has found
§ 2255 inadequate or ineffective in the “unusual” situation, where a petitioner “had no
earlier opportunity to challenge his conviction for a crime that an intervening change in
substantive law may negate.” Dorsainvil, 119 F.3d at 251; see Okereke, 307 F.3d at 120.
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Winkelman claims that § 2255 is inadequate or ineffective because the Supreme
Court decision in Watson negated his firearms convictions. Based on Watson,
Winkelman claims that he did not use a firearm under 18 U.S.C. § 924(c)(1)(A). 1 Even if
Watson negates his firearms convictions, Winkelman had an earlier opportunity to
challenge, and did attempt to challenge, his firearms convictions under Watson.
However, the District Court denied his Watson argument on procedural grounds, and this
Court denied his request to appeal that decision. Winkelman, therefore, does not fit
within the narrow situation where a § 2255 motion would be inadequate or ineffective to
challenge a conviction, and the District Court properly dismissed Winkelman’s § 2241
petition for lack of subject matter jurisdiction.
Accordingly, we will grant the Government’s motion and affirm the District
Court’s judgment.
1
The District Court correctly noted that Winkelman’s invalid sentence argument
under Whitley was abrogated by Abbott v. United States, ___ U.S. ___, 131 S. Ct. 18
(2010).
4