                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-16-2009

Antoine Norman v. Troy Levi
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2944




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HLD-27                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 08-2944
                                       ___________

                                  ANTOINE NORMAN,
                                             Appellant
                                         vs.

                                    TROY LEVI
                       ____________________________________

                   On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                             (D.C. Civil No. 08-cv-00962)
                    District Judge: Honorable R. Barclay Surrick
                     ___________________________________
   Submitted for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 December 31, 2008
          Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges

                            Opinion Filed: January 16, 2009
                                       _________

                                         OPINION

                                        _________

PER CURIAM.

              Antoine Norman, who is currently confined at the Federal Detention Center

in Philadelphia, appeals an order of the United States District Court for the Eastern

District of Pennsylvania denying his habeas petition filed pursuant to 28 U.S.C. § 2241.



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We will affirm.

             On September 7, 2007, following a jury trial in the United States District

Court for the Eastern District of Pennsylvania, Norman was found guilty of conspiracy,

bank fraud, aggravated identity theft, and aiding and abetting. While a sentencing hearing

was originally scheduled for December 6, 2007, various joint defense motions for

continuances were filed and granted. A hearing to determined the amount of loss

attributable to each of the co-defendants was held on June 12, 2008, and Norman’s

sentencing was eventually set for September 10, 2008. In the meantime, on February 25,

2008, Norman filed a habeas petition pursuant to 28 U.S.C. § 2241, wherein he claimed

that his Fourth and Fourteenth Amendment rights were violated by the Postal Inspector’s

investigation, which, he argued, was unlawful and without jurisdiction given the

Inspector’s alleged failure during the Grand Jury proceedings to establish a nexus

between the crimes and the U.S. mail. In an Order entered on June 20, 2008, the District

Court denied the petition after concluding that Norman’s claims were not cognizable

under § 2241. Norman now appeals that decision.

             We have jurisdiction over the appeal under 28 U.S.C. §§ 1291 and 2253(a),

and exercise plenary review over the District Court’s denial of the petition. See Okereke

v. United States, 307 F.3d 117, 119 (3d Cir. 2002).

             As properly noted by the District Court, a challenge to a federal conviction

must generally be brought in a motion to vacate under 28 U.S.C. § 2255. See Okereke,



                                            2
307 F.3d at 120. A prisoner may proceed under § 2241 only where the remedy provided

under § 2255 is inadequate or ineffective to test the legality of his confinement. See §

2255(e); Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). See

also Padilla v. United States, 416 F.3d 424, 425-426 (5th Cir. 2005) (“Section 2255 ... is

the appropriate remedy for ‘errors that occurred at or prior to the sentencing.’”)(internal

citations omitted). “A § 2255 motion would be inadequate or ineffective only if the

petitioner can show that a limitation of scope or procedure would prevent a § 2255

proceeding from affording him a full hearing and adjudication of his wrongful detention

claim.” Okereke, 307 F.3d at 120. Because Norman failed to show that a § 2255 motion

would be an inadequate or ineffective vehicle to present the constitutional claims raised in

his petition once his direct appeal had been disposed of, we conclude that the District

Court correctly determined that those claims should not be entertained in the context of a

§ 2241 proceeding. See, e.g., United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997)

(delay in submitting a § 2255 motion until the direct appeal is resolved does not render §

2255 inadequate or ineffective).

              Moreover, we find no fault with the District Court’s failure to construe

Norman’s petition as a motion under § 2255, as such a motion would have been subject to

dismissal as premature because it was filed prior to sentencing and direct appeal. See

Kapral v. United States, 166 F.3d 565, 570-72 (3d Cir. 1999)(a collateral attack is

generally inappropriate if the possibility of direct review remains open).



                                              3
             Accordingly, for the foregoing reasons, we conclude that the appeal does

not present a substantial question. We will therefore summarily affirm the judgment of

the District Court. See Third Circuit LAR 27.4 and I.O.P. 10.6.




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