                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-16-2006

Mohammed-Blaize v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2076




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Recommended Citation
"Mohammed-Blaize v. Atty Gen USA" (2006). 2006 Decisions. Paper 192.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/192


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                                                                             BPS-310
                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 06-2076
                                       ___________

                           OLABIYI MOHAMMED-BLAIZE,
                                           Appellant

                                             v.

                             U.S. ATTORNEY GENERAL;
                           CAMERON LINDSAY, WARDEN;
                            U.S. PENITENTIARY, CANAAN
                             __________________________

                     On Appeal From the United States District Court
                         For the Middle District of Pennsylvania
                              (D.C. Civil No. 05-cv-02083)
                      District Judge: Honorable William J. Nealon
                          _____________________________

           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
           or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   August 24, 2006

                Before: RENDELL, AMBRO and ROTH, Circuit Judges

                               (Filed: November 16, 2006)
                                     _____________

                               OPINION OF THE COURT
                                   _____________

PER CURIAM

       Olabiyi Mohammed-Blaize appeals the order of the United States District Court

for the Middle District of Pennsylvania, dismissing his petition filed pursuant to 28
U.S.C. § 2241. Appellant was informed that the appeal would be considered for possible

summary action and for determination under 28 U.S.C. § 1915(e)(2). We have

considered Appellant’s response, and we will summarily affirm.

       Appellant is serving a prison term based on a conviction in the United States

District Court for the Eastern District of New York for illegal reentry into the United

States. Appellant filed the § 2241 motion at issue here, claiming, inter alia, ineffective

assistance of counsel, as his attorney filed a direct appeal, but did not file a brief. He also

argued that his removal order, premised on his illegal reentry conviction, violated his due

process rights. The District Court dismissed the petition, holding that Mohammed-Blaize

could not challenge his federal conviction by way of a § 2241 petition, and, to the extent

he challenged his order of removal, the Court lacked jurisdiction to consider the challenge

pursuant to the REAL ID Act. Appellant timely appealed.

       A motion filed pursuant to 28 U.S.C. § 2255 is the presumptive means for a federal

prisoner to challenge the validity of his conviction or sentence, unless such a motion

would be “inadequate or ineffective to test the legality of his detention.” Okereke v.

United States, 307 F.3d 117, 120 (3d Cir. 2002); 28 U.S.C. § 2255. Section 2255 is not

inadequate or ineffective merely because a petitioner is unable to meet the stringent

gatekeeping requirements for filing a second or successive section 2255 motion under the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) or otherwise cannot




                                               2
meet the procedural requirements. Okereke, 307 F.3d at 120-21.1

         The “safety valve” provided under section 2255 is extremely narrow and applies to

the unusual situation in which a prisoner had no prior opportunity to challenge his

conviction for a crime later deemed to be non-criminal by an intervening change in law.

See Okereke, 307 F.3d at 120 (citing In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997).

Appellant has presented no evidence of any such “unusual” situation. Appellant thus

would be required to proceed by way of a § 2255 motion filed in the sentencing court.

We further agree with the District Court that Appellant could not challenge his removal

order by way of a § 2241 petition. 8 U.S.C. § 1252(a)(2)(D).

         We will therefore summarily affirm the order of the District Court.2




  1
    The District Court incorrectly characterized Appellant’s petition as a “successive
§ 2255 motion.” We take judicial notice that Appellant filed a prior § 2241 petition in the
sentencing court, which was converted to a § 2255 motion. However, that motion was
dismissed as premature, as it was filed before he had been sentenced on his conviction.
See Mohammed-Blaize v. INS, 133 Fed. Appx. 774 (2d Cir. 2005) (not precedential).
Thus, it does not count as a first § 2255 motion. Cf. Christy v. Horn, 115 F.3d 201, 208
(3d Cir. 1997) (when prior petition has been dismissed without prejudice for failure to
exhaust state remedies, subsequent petition is not second or successive). Nevertheless,
the District Court here properly dismissed Appellant’s petition, for the reasons stated
above.
  2
      Appellant’s motion for appointment of counsel is denied.

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