Keven Wyrick v. Warden Dave Ebbert

CLD-309 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-2564
___________
KEVEN WYRICK,
Appellant
v.
WARDEN DAVE EBBERT
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3:08-cv-01922)
District Judge: Honorable A. Richard Caputo
____________________________________
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
September 11, 2009
Before: RENDELL, HARDIMAN and GREENBERG, Circuit Judges
(Opinion filed: October 9, 2009)
_________
OPINION
_________
PER CURIAM
Keven Wyrick, an inmate at the Federal Correctional Institution at Allenwood in
White Deer, Pennsylvania, appeals the District Court’s order dismissing his 28 U.S.C.
§ 2241 petition for a writ of habeas corpus. Because the appeal does not present a

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Although not mentioned by Wyrick here, the Magistrate Judge’s report in the1
Western District of Louisiana proceeding noted that Wyrick attempted to challenge his
conviction on at least two other occasions. In September 2002, Wyrick, who at the time
was incarcerated at the United States Penitentiary in Leavenworth, Kansas, filed a § 2241
petition in the District of Kansas. In July 2004, the court dismissed the petition because
Wyrick failed to establish that § 2255 provided an inadequate or ineffective remedy for
his claims. The Tenth Circuit affirmed that judgment on appeal. In December 2005,
Wyrick sought permission from the Eighth Circuit to file a second or successive § 2255
motion, which the court ultimately denied.
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substantial question, we will summarily affirm. See 3d Cir. LAR 27.4; 3d Cir. I.O.P.
10.6.
I.
In November 1996, a Western District of Missouri jury convicted Wyrick of
murder in furtherance of a continuing criminal enterprise (“CCE”) and conspiracy to
distribute marijuana. In May 1997, the court sentenced him to life imprisonment. The
Eighth Circuit affirmed his conviction and sentence on direct appeal, see United States v.
Moore, 149 F.3d 773 (8th Cir. 1998), and the Supreme Court denied certiorari. See
Wyrick v. United States, 525 U.S. 1082 (1999).
In January 2000, Wyrick moved to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255. The Western District of Missouri ultimately denied the
motion, and the Eighth Circuit declined to issue a certificate of appealability. Wyrick
states that he later filed an ultimately unsuccessful 28 U.S.C. § 2241 petition for a writ of
habeas corpus in the Western District of Louisiana.1
In October 2008, Wyrick filed the instant § 2241 petition in the Middle District of

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Pennsylvania. The petition alleged that his trial counsel was ineffective for failing to
object to: (1) “the duplicitous Count III allowing a verdict on competing theories and
violating his due process of law”; (2) the trial court’s incorrect jury instruction regarding
the reasonable doubt standard; and (3) “the prosecutor’s improper vouching for
cooperating witness credibility.”
The District Court referred the petition to a Magistrate Judge, who issued a report
recommending that the court dismiss the petition because Wyrick had not demonstrated
that § 2255 provided an inadequate or ineffective remedy for his claims. The District
Court adopted this recommendation and dismissed the petition. Wyrick now appeals the
District Court’s judgment.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise
plenary review over the District Court’s dismissal of Wyrick’s § 2241 petition. See
Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002).
A § 2255 motion is “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
can seek relief under § 2241 only if § 2255 is “inadequate or ineffective” to test the
legality of his detention. See 28 U.S.C. § 2255(e); Cradle, 290 F.3d at 538. Section 2255
is inadequate or ineffective only in rare circumstances, such as when an intervening

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Supreme Court decision decriminalizes the conduct for which a petitioner had been
convicted. See Okereke, 307 F.3d at 120 (citing In re Dorsainvil, 119 F.3d 245 (3d Cir.
1997)).
We agree with the District Court that Wyrick failed to show that § 2255 is
inadequate or ineffective to test the legality of his detention. Wyrick could have raised
each of his § 2241 claims in his original § 2255 motion. That he failed to do so does not
render the remedy afforded by § 2255 inadequate or ineffective.
Because this appeal does not present a substantial question, we will summarily
affirm the District Court’s order dismissing Wyrick’s § 2241 petition. See 3d Cir. LAR
27.4; 3d Cir. I.O.P. 10.6.

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