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


1-31-2007

Bax v. Warden FCI McKean
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4187




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HLD-44 (January 2007)                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-4187


                                      JOHN BAX,
                                         Appellant

                                           vs.

                             WARDEN FCI MCKEAN
                      ___________________________________

                    On Appeal From the United States District Court
                       For the Western District of Pennsylvania
                               (D.C. Civ. No. 05-cv-00194)
                     District Judge: Honorable Sean J. McLaughlin
                     ____________________________________

     Submitted For Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                January 19, 2007

         Before: SCIRICA, Chief Judge, WEIS AND GARTH, Circuit Judges

                                (Filed: January 31, 2007)


                                       OPINION


PER CURIAM.

             Appellant John Bax, a federal prisoner incarcerated at the Federal

Correctional Institution at McKean in Bradford, Pennsylvania, appeals the order entered



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by the United States District Court for the Western District of Pennsylvania dismissing

his petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2241.

              Bax was convicted in 1993 of conspiracy to manufacture and distribute

cocaine and crack. Bax was sentenced to serve 286 months of imprisonment under the

career offender guidelines. Bax’s conviction and sentence were affirmed by this Court in

1994. In 1997, Bax filed a 28 U.S.C. § 2255 motion to vacate, set aside or correct his

sentence. This motion was denied, as was Bax’s application to this Court for a certificate

of appealability. Bax thereafter filed an unsuccessful motion pursuant to Federal Rule of

Criminal Procedure 35(a) and 18 U.S.C. § 3582(c)(1)(A)(I). Subsequently, Bax applied

to this Court for authorization to file a second or successive § 2255 motion, but this

application was denied.

              In his current § 2241 petition, Bax argues that his conviction and sentence

violated the Fifth and Sixth Amendments to the Constitution. The District Court

dismissed Bax’s § 2241 petition for lack of subject matter jurisdiction, concluding that it

constituted a collateral attack upon the legality of his sentence, and that Bax’s inability to

bring a subsequent § 2255 motion did not make that remedy “ineffective or inadequate”

to test the legality of his detention. On appeal, Bax contends that the § 2255 “safety

valve” should apply to him because he is “actually innoc[ent] of the elements needed to

subject him to the substantial career offender enhancement . . . .”

              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.

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              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.

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

validity of his conviction and sentence. We agree with the District Court that Bax has not

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

circumstances presented here. This is not a situation where Bax has had no prior

opportunity to challenge his conviction for a crime later deemed to be non-criminal.

Indeed, Bax has already challenged – albeit unsuccessfully – being sentenced as a career

offender in his prior § 2255 motion. Accordingly, we need not reach the question of

whether a prisoner can be actually innocent of being a career offender.

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

                                             3
could not entertain Bax’s petition. We also conclude that the District Court did not abuse

its discretion in denying Bax’s motion for reconsideration. We will, therefore, summarily

affirm the District Court’s orders.




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