HLD-198      (September 2010)                           NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 10-1748
                                      ____________

                              ROBERT EARL EDWARDS,
                                              Appellant,
                                       v.

                              WARDEN T. R. SNIEZEK
                        __________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                               (D.C. Civ. No. 09-cv-02251)
                        District Judge: Honorable Malcolm Muir
                      ____________________________________

         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 30, 2010
           Before: MCKEE, Chief Judge, SCIRICA and WEIS, Circuit Judges
                          (Opinion filed November 5, 2010)

                                      ____________

                                        OPINION
                                      ____________

PER CURIAM.

              Appellant Robert Earl Edwards, a federal prisoner, was tried before a jury

in United States District Court for the Southern District of Texas and found guilty of one

count of conspiracy with intent to distribute in excess of 1,000 kilograms of marijuana in


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violation of 21 U.S.C. '' 846, 841(a), and 841(b)(1)(A); two counts of possession with

intent to distribute in excess of 100 kilograms of marijuana in violation of 21 U.S.C. ''

841(a)(1) and 841(b)(1)(B), and one count of conspiracy to conduct financial transactions

involving dangerous drugs with the intent to promote, conceal, and disguise the proceeds

in violation of 18 U.S.C. '' 1956(a)(1)(A)(I), 1956(a)(1)(B)(I), and 1956(h). On March

17, 2003, Edwards was sentenced to a total term of imprisonment of 192 months. On

appeal, Edwards argued that the sentencing court improperly applied a two-level

adjustment for a leadership role in the criminal activity, and a two-level adjustment for

obstruction of justice. The judgment of conviction and sentence was affirmed by the

Fifth Circuit Court of Appeals. See United States v. Giddings, 107 Fed. Appx. 420, 424-

25 (5th Cir. 2004) (court=s two-level enhancement for Edwards= leadership role not

erroneous where evidence showed that he Amanaged@ many of the drivers who transported

marijuana).

              Edwards petitioned the United States Supreme Court for a writ of certiorari,

which was granted. On February 28, 2005, the Supreme Court vacated and remanded the

case for further consideration in light of United States v. Booker, 543 U.S. 220 (2005)

(Sentencing Guidelines are advisory only). See Edwards v. United States, 543 U.S. 1181

(2005). On remand, the Fifth Circuit reinstated its judgment affirming the conviction and

sentence. Reviewing for plain error because Edwards did not raise an objection to the

constitutionality of his sentence before the sentencing court, the Fifth Circuit held that



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Edwards failed to show that the sentencing court would have reached a different result

under an advisory rather than a mandatory scheme. AIndeed, while the Guidelines

permitted a sentence as low as 188 months, the court sentenced Edwards to 192 months

confinement.@ United States v. Edwards, 132 Fed. Appx. 535, 536 (5th Cir. 2005).

              On June 26, 2006, Edwards filed a motion to vacate sentence under 28

U.S.C. ' 2255. The sentencing court denied the motion and declined to issue a certificate

of appealability. Although the Fifth Circuit granted Edwards a certificate of appealability

on the issue whether the trial court improperly commented on the evidence during jury

instructions, and whether Edwards= trial counsel was ineffective in failing to object to

those comments, ultimately the court affirmed the order denying Edwards= section 2255

motion. See United States v. Edwards, 280 Fed. Appx. 409, 421 (5th Cir. 2008) (trial

court=s instructions to jury did not amount to improper comment on disputed facts).

Edwards filed a petition for writ of certiorari in the United States Supreme Court, which

was denied on April 28, 2009.

              On November 16, 2009, Edwards filed a petition for writ of habeas corpus,

28 U.S.C. ' 2241, in United States District Court for the Middle District of Pennsylvania,

the district where he presently is confined. Edwards claimed that the enhancement he

received for his leadership role violates his constitutional rights because he was never

indicted for a leadership role in the criminal activity, and the jury did not find beyond a

reasonable doubt that he had a leadership role in it. Edwards sought to have his sentence



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reduced by 5 years and 11 months. In an order entered on March 3, 2010, the District

Court dismissed the habeas corpus petition for lack of jurisdiction.

              Edwards appeals. Our Clerk granted him leave to appeal in forma pauperis

and advised him that the appeal was subject to summary dismissal under 28 U.S.C. '

1915(e)(2)(B) or summary affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. He

was invited to submit argument in writing, but he has not done so.

              We have jurisdiction under 28 U.S.C. ' 1291. Under Third Circuit LAR

27.4 and I.O.P. 10.6, we may summarily dispose of an appeal when it clearly appears that

no substantial question is presented by the appeal. Our review is plenary. United States

v. Thompson, 70 F.3d 279, 280-81 (3d Cir. 1995).

              We will summarily affirm the order of the District Court because no

substantial question is presented by this appeal. As explained by the District Court, a

motion to vacate sentence pursuant to 28 U.S.C. ' 2255 is the exclusive means to

challenge collaterally a federal conviction or sentence. See Davis v. United States, 417

U.S. 333, 343-44 (1974). Under the explicit terms of 28 U.S.C. ' 2255, unless a section

2255 motion would be Ainadequate or ineffective,@ even a habeas corpus petition cannot

be entertained by a court. See Application of Galante, 473 F.2d 1164, 1165 (3d Cir.

1971). Section 2255 is not inadequate or ineffective simply because Edwards is

prevented by the gatekeeping requirements of the statute, see 28 U.S.C. ' 2255(h), from

litigating his Apprendi claim, see Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)



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(holding that A[o]ther than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be submitted to a

jury, and proved beyond a reasonable doubt@), in a second or successive section 2255

motion.1      AIt is the efficacy of the remedy, not the personal inability to use it, that is

determinative.@ Cradle v. United States ex rel. Miner, 290 F.3d 536, 538-39 (3d Cir.

2002) (per curiam) (citing Garris v. Lindsay, 794 F.2d 722, 727 (D.C. Cir.1986).

Moreover, the safety valve provided under 28 U.S.C. ' 2255 is narrow, see In re:

Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). In Dorsainvil, we held that a petitioner

could seek relief under 28 U.S.C. ' 2241, but the circumstances here are different.

Apprendi did not declare certain conduct not criminal that previously was regarded as

criminal, and thus Dorsainvil does not apply. Okereke v. United States, 307 F.3d 117,

120 (3d Cir. 2002) (Apprendi dealt with sentencing and did not render conspiracy to

import heroin, the crime for which [petitioner] was convicted, not criminal). As such, the




1
     Section 2255 provides that:

       (h) A second or successive motion must be certified as provided in section 2244 by
       a panel of the appropriate court of appeals to contain B
       (1) newly discovered evidence that, if proven and viewed in light of the evidence
       as a whole, would be sufficient to establish by clear and convincing evidence that
       no reasonable factfinder would have found the movant guilty of the offense; or
       (2) a new rule of constitutional law, made retroactive to cases on collateral review
       by the Supreme Court, that was previously unavailable.

28 U.S.C. ' 2255(h).


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District Court was without jurisdiction to entertain Edwards= federal habeas corpus

petition.

              For the foregoing reasons, we will summarily affirm the order of the

District Court dismissing Edwards= habeas corpus petition for lack of jurisdiction.
