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


5-9-2005

Porter v. Nash
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4766




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"Porter v. Nash" (2005). 2005 Decisions. Paper 1234.
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DPS-156                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                    NO. 04-4766
                       ____________________________________

                                  EMJADIA PORTER,
                                               Appellant

                                             v.

                               WARDEN JOHN NASH,
                               WARDEN, FCI FORT DIX

                       ____________________________________

                     On Appeal From the United States District Court
                              For the District of New Jersey
                              (D.C. Civ. No. 04-cv-05254)
                       District Judge: Honorable Joseph E. Irenas
                     _______________________________________


 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                 March 10, 2005

                   Before: ROTH, BARRY and SMITH, Circuit Judges

                                   (Filed May 9, 2005)

                               _______________________

                                       OPINION
                               _______________________

PER CURIAM

       Emjadia Porter, a federal prisoner, appeals pro se the orders of the United States

District Court for the District of New Jersey denying his habeas petition filed pursuant to
28 U.S.C. § 2241, and its subsequent order denying his motion for reconsideration. For

the reasons that follow, we will summarily affirm the District Court’s orders.

       Following a jury trial, Porter was convicted in the United States District Court for

the Western District of Virginia of conspiracy to distribute cocaine base, in violation of

21 U.S.C. § 846, intimidation of a witness, in violation of 18 U.S.C. § 1513(a)(2), and

using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). See Porter

v. United States, 148 F.Supp.2d 685, 686 (W.D. Va. 2001) (detailing the substantive and

procedural history of Porter’s case). Porter was sentenced to 210 months’ imprisonment

on the conspiracy count, plus a concurrent term of 120 months’ imprisonment on the

intimidation count, and a consecutive term of 60 months’ imprisonment on the firearm

count. Porter’s conviction and sentence were affirmed on direct appeal by the United

States Court of Appeals for the Fourth Circuit. See United States v. Williamson, 1996

WL 293170 (4th Cir. Jun. 4, 1996).

       Porter then filed a motion pursuant to 28 U.S.C. § 2255 in the District Court for

the Western District of Virginia raising due process and ineffective assistance of counsel

claims. The District Court rejected all of Porter’s claims except one ineffectiveness claim

relating to the trial court’s jury instructions. Accordingly, the District Court for the

Western District of Virginia vacated Porter’s intimidation and firearm convictions, and

ordered that he be resentenced on the remaining conspiracy conviction. The November 4,

1999 resentencing hearing was limited to a determination of whether Porter was subject



                                               2
to a two-level adjustment for possession of a firearm under the U.S. Sentencing

Guidelines Manual § 2D1.1(b)(1).1 See Porter, 148 F.Supp.2d at 686. The District Court

applied the two-level adjustment and then resentenced Porter to 262 months’

imprisonment on the conspiracy count. See id. The Court of Appeals for the Fourth

Circuit affirmed. See United States v. Porter, 2000 WL 774767 (4th Cir. Jun. 16, 2000).

       On August 20, 2004, Porter filed his second § 2255 motion in the District Court

for the Western District of Virginia challenging his sentence under Apprendi v. New

Jersey, 530 U.S. 466 (2000). The District Court dismissed Porter’s motion as second or

successive, and, in the alternative, because Apprendi is not retroactive to cases on

collateral review. See Porter, 148 F.Supp.2d at 687-88 & 688 n. 2. Again, the Court of

Appeals for the Fourth Circuit affirmed. See United States v. Porter, 2001 WL 1379876

(4th Cir. Nov. 7, 2001).

       Porter, who is incarcerated at the Fort Dix Federal Correctional Institution, filed

the underlying § 2241 petition in the District Court for the District of New Jersey on

October 22, 2004. In his petition, Porter argued that his 262 month sentence for

conspiracy to distribute cocaine base violates Apprendi. In an order entered on

November 15, 2004, the District Court denied Porter’s § 2241 petition. Porter then filed a

motion for reconsideration pursuant to Fed. R. Civ. P. 59(e), which the District Court




       1
        Porter unsuccessfully attempted to expand the resentencing hearing to include a
redetermination by the District Court of the quantity of drugs attributable to him.

                                              3
denied in an order entered on December 9, 2004. This timely appeal followed.

       A § 2255 motion is the presumptive means by which a federal prisoner can

challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343

(1974). A federal prisoner may proceed under § 2241 only if the remedy provided by

§ 2255 is inadequate or ineffective to test the legality of his detention. See 28 U.S.C.

§ 2255; In re Dorsainvil, 119 F.3d 245, 249-51 (3d Cir. 1997). “A § 2255 motion is

inadequate or ineffective 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 claims.” Cradle v. United States ex rel. Miner, 290 F.3d 536, 538

(3d Cir. 2002). Section 2255 is not inadequate or ineffective merely because a prior

motion has been unsuccessful or the petitioner is unable to meet the stringent gatekeeping

requirements for filing a second or successive § 2255 motion. See Okereke v. United

States, 307 F.3d 117, 120-21 (3d Cir. 2002); see also Cradle, 290 F.3d at 539.

       Specifically, we held in Okereke that § 2255 is not inadequate or ineffective for a

federal prisoner to challenge his sentence under Apprendi. See Okereke, 307 F.3d at 120-

21. In Okereke, we distinguished Dorsainvil, 119 F.3d at 251, where the court found

§ 2255 inadequate or ineffective because the prisoner was in the unusual position of

having no prior opportunity to challenge his conviction for a crime that an intervening

change in substantive law could negate with retroactive application. We explained that

unlike a change in law that potentially made the crime for which the prisoner was



                                              4
convicted non-criminal, Apprendi dealt with sentencing and did not render the drug

offense for which Okereke was convicted, not criminal. Okereke, 307 F.3d at 121. Thus,

notwithstanding Porter’s contention that the Court of Appeals for the Fourth Circuit erred

with respect to the retroactivity issue, Okereke precludes him from raising an Apprendi

challenge in a § 2241 proceeding.

      Because this appeal presents “no substantial question,” 3d Cir. LAR 27.4 and

I.O.P. 10.6, we will summarily affirm the District Court’s November 15, 2004 and

December 9, 2004 orders.




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