HLD-168 (May 2011)                                           NOT PRECEDENTIAL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
                                      _________

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, 

(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, 

(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,

, 240 (3d Cir. 1999).

              Rhines relied upon Sellers v. Bureau of Prisons, 

(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. 

.

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. 

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


1
 Rhines’ action may also be foreclosed by regulation. See Skinner v. United States
Dep’t of Justice, 

, 1096-97 (D.C. Cir. 2009), White v. United States Prob.
Office, 

, 1125 (D.C. Cir. 1998).
                                             3
sentence, he cannot proceed in a § 2241 petition. “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,

, 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, 

, 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, 

, 251 (3d Cir.

1997). Rhines has not demonstrated that his is such a rare situation.

                                              4
             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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