                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-7-2007

Braggs v. Marberry
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2910




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"Braggs v. Marberry" (2007). 2007 Decisions. Paper 457.
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CLD-341                                                  NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT

                                        NO. 07-2910
                                     ________________

                                     ROBERT BRAGGS,
                                            Appellant

                                               v.

                          H. J. MARBERRY, Warden, FCI McKean
                         ____________________________________

                       On Appeal From the United States District Court
                          For the Western District of Pennsylvania
                                  (D.C. Civ. No. 06-cv-00274)
                        District Judge: Honorable Sean J. McLaughlin
                       _______________________________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                           and Certificate of Appealability

                                       August 16, 2007

              BEFORE: RENDELL, SMITH and JORDAN, CIRCUIT JUDGES

                                 (Filed: September 7, 2007)
                                 _______________________

                                         OPINION
                                 _______________________

PER CURIAM

          Robert Braggs appeals from the District Court’s order dismissing the habeas

corpus petition he filed pursuant to 28 U.S.C. § 2241 for lack of jurisdiction. We will

affirm.
       In 1992 Braggs was convicted in the United States District Court for the Southern

District of Ohio of various crimes involving the distribution of crack cocaine. The United

States Court of Appeals for the Sixth Circuit affirmed. United States v. Braggs, 23 F.3d

1047 (6th Cir. 1994). The following year Braggs filed a motion challenging his conviction

and sentence pursuant to 28 U.S.C. § 2255. The District Court denied the motion and the

Court of Appeals affirmed. Braggs v. United States, 1998 WL 136542 (6th Cir. March 16,

1998). After twice unsuccessfully seeking permission from the Sixth Circuit to file a

second or successive § 2255 motion, in 2001 Braggs filed a habeas corpus petition

pursuant to 28 U.S.C. § 2241. The District Court dismissed the petition and the Court of

Appeals affirmed. Braggs v. Perez, 2002 WL 927031 (6th Cir. May 7, 2002). Braggs’

subsequent motion pursuant to Fed. R. Civ. P. 60(b) met the same fate. See Braggs v.

Perez, 73 Fed. Appx. 147 (6th Cir. 2003).

       Undeterred, in 2006 Braggs filed another § 2241 petition, this time in the Western

District of Pennsylvania. Once again he challenges his 1992 conviction and sentence,

asserting the same Brady and ineffectiveness claims which the Sixth Circuit denied him

leave to present via § 2255. In his petition Braggs concedes that his Brady evidence does

not meet the Sixth Circuit’s definition of “newly discovered evidence” but argues that he

may seek relief via § 2241 thanks to the “savings clause” of § 2255. Braggs appears to

argue that this definition effectively renders § 2255 “inadequate or ineffective” or, at any

rate, that he may resort to § 2241 because he is innocent.

       The Magistrate Judge recommended dismissal of the petition for lack of

                                              2
jurisdiction because it amounts to an unauthorized second or successive § 2255 motion.

The District Court adopted that recommendation, rejecting Braggs’ “savings clause”

argument. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291 and

review the District Court’s judgment de novo. Okereke v. United States, 307 F.3d 117

(3d Cir. 2002). The appellee has moved for summary affirmance.

       We agree with the District Court that Braggs’ claims fall squarely within § 2255.

Thus, Braggs cannot proceed via § 2241 unless the “savings clause” in § 2255 applies to

him. As the District Court correctly explained, it does not. Section 2255 is “inadequate

or ineffective” only if the petitioner “was in the ‘unusual position’ of a prisoner with no

prior opportunity to challenge his conviction for a crime that an intervening change in

substantive law could negate with retroactive application.” Okereke v. United States, 307

F.3d 117, 120 (3d Cir. 2002). Plainly, this language describes neither of Braggs’ claims.1

As a result, the appeal does not present a substantial question and we grant the appellee’s

motion for summary affirmance.2




  1
     We note that the Sixth Circuit Court of Appeals reached the same conclusion in
affirming the denial of Braggs’ 60(b) motion. See Braggs v. Perez, 73 Fed. Appx. 147
(6th Cir. 2003).
  2
   Because this appeal is from the dismissal of a § 2241 petition, a certificate of
appealability is not required.. See 28 U.S.C. § 2253(c)(1)(B); Sugarman v. Pitzer, 170
F.3d 1145, 1146 (D.C.Cir.1999).
