Gary Rhines v. Ronald Holt , 434 F. App'x 67 ( 2011 )

HLD-168 (May 2011) NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-1308
___________
GARY RHINES,
Appellant
v.
RONNIE HOLT
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 10-cv-02225)
District Judge: Honorable William J. Nealon
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
Before: MCKEE, Chief Judge, ALDISERT and WEIS Circuit Judges
(Opinion filed: June 30, 2011)
_________
OPINION
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PER CURIAM.
Gary Rhines was convicted of possession with intent to distribute fifty
grams of cocaine base and was sentenced to life in prison. We affirmed the conviction
and sentence, United States v. Rhines, 143 F. App’x 478 (3d Cir. 2005), and the United
States Supreme Court denied certiorari, Rhines v. United States, 546 U.S. 1210 (2006).
Since then, Rhines has continued to challenge his conviction and sentence. His motion
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pursuant to 28 U.S.C. § 2255 was denied in 2007, and we denied a certificate of
appealability. In 2010, we denied Rhines’ application to file a second or successive
§2255 motion (C.A. No. 10-2438), as well as a mandamus petition seeking the dismissal
of his indictment (C.A. No. 10-2990). Recently, we denied his petition for a writ of error
coram nobis. United States v. Rhines, No. 10-4077, 2011 U.S. App. LEXIS 6781 (3rd
Cir. Apr. 4, 2011).
Rhines filed a pro se habeas petition pursuant to 28 U.S.C. § 2241 in the
District Court in October 2010. He alleged that certain information in his pre-sentence
report was erroneous, specifically that a prior state conviction should not have been used
as a predicate offense to enhance his federal sentence because his counsel failed to file an
appeal from that conviction. Rhines claimed that his custody level and eligibility for
certain programs were adversely affected by the erroneous information and that he is
“actually innocent” of the enhanced sentence due to counsel’s ineffective assistance. He
sought to have the information removed from his file. The District Court construed
Rhines’ request for removal of the information as an action under the Privacy Act, 5
U.S.C. § 552a, and denied it, concluding that the Bureau of Prisons had taken reasonable
steps to ensure that Rhines’ prison record was accurate. In addition, and to the extent
Rhines was attempting to challenge his sentence, the District Court held that he could not
proceed in a habeas petition under § 2241, but rather must bring the claim in a § 2255
motion. This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. If no substantial
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question is presented, we may summarily affirm the District Court’s order on any ground
supported by the record. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6; Tourscher v. McCullough,
184 F.3d 236, 240 (3d Cir. 1999).
Rhines relied upon Sellers v. Bureau of Prisons, 959 F.2d 307 (D.C. Cir.
1992), to argue that he was entitled to have the allegedly erroneous prior conviction
removed from his prison record. In Sellers, an inmate sought damages from the Bureau
of Prisons under the Privacy Act for failing to maintain accurate records and for making
decisions adverse to him based on the inaccurate information. Sellers, 959 F.2d at 310.
The court held in pertinent part that the Bureau of Prisons was required under the Privacy
Act to take reasonable steps to maintain accurate information in inmate records, so long
as the information was capable of being verified. Id. at 312. In this case, Rhines’
objection to the information in his pre-sentence report was reviewed by a Supervising
U.S. Probation Officer, who addressed his claims and confirmed that the challenged
offense met the requirements to trigger an enhanced sentence. Although it is not clear
that a claim seeking correction of a prison record can be brought pursuant to 28 U.S.C.
2241, we agree with the District Court’s conclusion that the record shows that Rhines’
claim lacks merit. 1
We also agree that, to the extent Rhines is attempting to challenge his
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Rhines’ action may also be foreclosed by regulation. See Skinner v. United States
Dep’t of Justice, 584 F. 3d 1093, 1096-97 (D.C. Cir. 2009), White v. United States Prob.
Office, 148 F.3d 1124, 1125 (D.C. Cir. 1998).
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sentence, he cannot proceed in a § 2241 petition. “Motions pursuant to 28 U.S.C. § 2255are 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 may, however, challenge a conviction or
sentence pursuant to § 2241 where a § 2255 motion would be “inadequate or ineffective,”
i.e., “only where the petitioner demonstrates that some limitation of scope or procedure
would prevent a § 2255 proceeding from affording him a full hearing and adjudication of
his wrongful detention claim.” Cradle v. United States, 290 F.3d 536, 538 (3d Cir. 2002)
(per curiam).
Rhines has not made such a showing. He states in his habeas petition that
the “information” regarding his prior state conviction “was not available during petitioner
[sic] 2255 stage.” Habeas Pet. at 4. Rhines apparently bases this assertion on a letter he
received in 2010 from his lawyer in response to his request for the “transcripts” of his
1995 and 1996 state cases. But this correspondence does not explain how Rhines could
not have previously discovered that appeals had not been filed many years ago in his state
cases, or that those convictions had been used to enhance his federal sentence. Rhines
could have raised his claim as to his sentence on direct appeal. The “safety valve”
provided by § 2255(e) is a narrow one that applies only in rare situations, such as when a
prisoner has had no prior opportunity to challenge his conviction for a crime later deemed
not criminal due to a change in the law. See In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.
1997). Rhines has not demonstrated that his is such a rare situation.
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There being no substantial question presented by this appeal, we will
summarily affirm the District Court’s order. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
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