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


8-3-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1984




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Recommended Citation
"Hyatt v. Nash" (2006). 2006 Decisions. Paper 615.
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HPS- 87                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 06-1984
                                   ________________

                          FITZ-ALBERT ANTHONY HYATT,
                                          Appellant

                                             vs.

                       JOHN NASH, WARDEN, FCI FORT DIX;
                          UNITED STATES OF AMERICA
                       ___________________________________

                     On Appeal From the United States District Court
                              For the District of New Jersey
                               (D.C. Civ. No. 05-cv-02924)
                      District Judge: Honorable Freda L. Wolfson

                           _____________________________

 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
                                    July 14, 2006
    Before: CHIEF JUDGE SCIRICA, WEIS AND GARTH, CIRCUIT JUDGES

                                  Filed August 3, 2006
                               _______________________

                                       OPINION
                               _______________________

PER CURIAM.

              In 2000, in the United States District Court for the Southern District of

Florida, Fitz-Albert Anthony Hyatt pled guilty pursuant to a plea agreement to a charge of

possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). Hyatt
was sentenced to 120 months of imprisonment and five years of supervised release. After

the Florida district court’s judgment was affirmed in 2001, Hyatt filed a motion to vacate

pursuant to 28 U.S.C. § 2255. This motion was denied.

              Hyatt, who is currently incarcerated at the Federal Correctional Institution

in Fort Dix, New Jersey, proceeded to file a petition for writ of habeas corpus pursuant to

28 U.S.C. § 2241 with the United States District Court of New Jersey. This petition, and

the District Court’s dismissal thereof, are the subject of this appeal.

              In his § 2241 petition, Hyatt argues that “[h]aving pled guilty I did not

benefit from the reduction of acceptance of responsibility nor did the Judge have the

power to [depart] below the 120 months.” In an apparent reference to United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), Hyatt further contends that because 18

U.S.C. § 3353(b)(1) has been severed, thereby making the sentencing guidelines advisory,

he should be re-sentenced “under the current advisory system.” We also read Hyatt’s

petition as arguing that denying him the opportunity to seek re-sentencing under Booker

would violate Equal Protection because prisoners with cases pending on direct review are

potentially able to benefit from Booker.1 Hyatt asserts that a § 2241 petition is the proper

avenue for him to raise these claims because he would not be able to satisfy the

gatekeeping requirements for filing a second or successive § 2255 motion.


   1
     The rule announced in Booker does not apply retroactively to cases on collateral
review. See Lloyd v. United States, 407 F.3d 608, 614 (3d Cir. 2005); Varela v. United
States, 400 F.3d 864, 868 (11 th Cir. 2005) (per curiam).

                                              2
              The District Court dismissed the § 2241 petition, concluding that it lacked

jurisdiction to consider it because § 2255 was not “inadequate or ineffective to raise the

claim asserted by Petitioner . . . .” Hyatt timely appealed.

              We have jurisdiction pursuant to 28 U.S.C. § 1291. Because there is no

substantial question on appeal, the District Court’s order will be affirmed.

               Motions pursuant to 28 U.S.C. § 2255 “are the presumptive means by

which federal prisoners can challenge their convictions or sentences that are allegedly in

violation of the Constitution.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir.

2002)(citation omitted). Unless a § 2255 motion would be “inadequate or ineffective,” a

habeas corpus petition under § 2241 cannot be entertained by the court. Cradle v. United

States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002)(per curiam). Section 2255 is not

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

gatekeeping requirements. See In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997).

Rather, the “safety-valve” provided under § 2255 is extremely narrow, and has been held

to apply in unusual situations, such as those in which a prisoner has 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.

              Hyatt’s claims fall within the purview of § 2255 because they challenge the

validity of his sentence. We agree with the District Court that Hyatt has not demonstrated

that § 2255 is an “inadequate or ineffective” remedy under the circumstances presented



                                              3
here. Success on Hyatt’s claims would potentially affect his sentence, not the criminality

of his conduct. Cf. Okereke, 307 F.3d at 120-21 (section 2255 not “inadequate or

ineffective” where petitioner challenged sentence based on intervening decision in New

Jersey v. Apprendi, 530 U.S. 466 (2001)). Moreover, Hyatt’s putative Equal Protection

argument is without merit and does not open the § 2255 “safety valve” to him.

              For these reasons, we agree with the District Court’s conclusion that it

could not entertain Hyatt’s petition. We will, therefore, summarily affirm the District

Court’s judgment. Hyatt’s motion for appointment of counsel is denied.




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