                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-7-2005

Brown v. Holt
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2875




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Recommended Citation
"Brown v. Holt" (2005). 2005 Decisions. Paper 566.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/566


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BPS-350                                                 NOT-PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                        ________________

                              NO. 05-2875
                           ________________

                     JAMES ALTERIQUE BROWN

                                            Appellant

                                    V.

                        RONNIE R. HOLT
                     WARDEN, FCI SCHUYLKILL

               ____________________________________

              On Appeal From the United States District Court
                  For the Middle District of Pennsylvania
                        (D.C. Civil No. 05-cv-00967)
                District Judge: Honorable James M. Munley
              _______________________________________


                Submitted For Possible Summary Action
               Under Third Circuit LAR 27.4 and I.O.P. 10.6
                            August 25, 2005

   Before: RENDELL, FISHER AND VAN ANTWERPEN, CIRCUIT JUDGES

                        (Filed: September 7, 2005)


                       _______________________

                               OPINION
                       _______________________

PER CURIAM
       James Brown appeals the dismissal of his petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2241 by the District Court for the Middle District of

Pennsylvania.

       Brown was convicted in the District of New Jersey of possession of a firearm by a

convicted felon and the failure to appear, and was sentenced to a collective term of 92

months imprisonment. In 2001, Brown filed a motion to vacate pursuant to 28 U.S.C. §

2255. The motion was denied, and we denied a certificate of appealability. Brown v.

United States, C.A. No. 03-2952. In 2004, Brown filed a motion to reopen the § 2255

proceedings. The motion was denied, and we denied a certificate of appealability.

Brown v. United States, C.A. No. 04-3505. This Court also denied Brown’s application

to file a second or successive habeas petition, in which he sought to raise claims under

Blakely v. Washington, 542 U.S. 296 (2004) and United States v. Booker, 125 S. Ct. 738

(2005). In re Brown, C.A. No. 05-1395.

       Brown, who is currently confined within the Middle District of Pennsylvania, then

filed a habeas petition pursuant to 28 U.S.C. § 2241, again challenging his sentence under

Booker. The District Court found that § 2241 was not available to Brown and denied

relief. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

       A § 2255 motion filed in the sentencing court is the presumptive means for a

federal prisoner to challenge to his sentence. 28 U.S.C. § 2255; Okereke v. United States,

307 F.3d 117, 120 (3d Cir. 2002). A § 2241 petition may not be entertained unless a



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motion under § 2255 would be “inadequate or ineffective to test the legality of [the]

detention.” 28 U.S.C. § 2255. A § 2255 motion is not “inadequate or ineffective” merely

because the petitioner can not meet the stringent gate keeping requirements of § 2255,

Okereke, 307 F.3d at 120, or because the sentencing court does not grant relief, Cradle v.

United States ex rel. Miner, 290 F.3d 536, 539 (3d Cir. 2002).

       Brown’s claims fall within the purview of § 2255. Furthermore, as found by the

District Court, Brown has not demonstrated that § 2255 is “inadequate or ineffective.”

Cf. Okereke, 307 F.3d at 120-21 (finding § 2255 not “inadequate or ineffective”, where

successive petitioner sought to raise sentencing claim based on intervening decision in

New Jersey v. Apprendi, 530 U.S. 466 (2001)). To the extent Brown argues that the

“inadequate or ineffective” requirement is unconstitutional, the claim is without merit.

See United States v. Brooks, 245 F.3d 291, 292 n.2 (3d Cir. 2001) (recognizing that

requiring federal prisoner to seek relief pursuant to § 2255, rather than § 2241, is not a

suspension of the writ).

       Accordingly, as there is no substantial question presented by this appeal, we will

summarily affirm. Third Circuit LAR 27.4; Third Circuit I.O.P. 10.6.




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