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


11-5-2007

Black v. Warden Lewisburg
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3211




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"Black v. Warden Lewisburg" (2007). 2007 Decisions. Paper 263.
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BLD-7                                                            NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      No. 07-3211
                                   ________________

                                  RODERICK BLACK,
                                                               Appellant

                                              v.

                            WARDEN, USP LEWISBURG
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                               (D.C. Civ. No. 07-cv-00805)
                       District Judge: Honorable James M. Munley
                     _______________________________________

                   Submitted on Cross-Motions for Summary Action
                    Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                  October 12, 2007
                Before: MCKEE, RENDELL and SMITH, Circuit Judges

                                 Filed: November 5, 2007

                               _______________________

                                      OPINION
                               _______________________

PER CURIAM


       This is an appeal from the district court’s dismissal of Roderick Black’s petition

for a writ of habeas corpus pursuant to 28 U.S.C § 2241. We will summarily affirm. See

I.O.P. 10.6.
       Black is a federal prisoner incarcerated at the United States Penitentiary in

Lewisburg. On September 2, 1994, Black was convicted of various drug trafficking

offenses, in the United States District Court for the Eastern District of North Carolina.

United States v. Black, 97 F.3d 1449 (4th Cir. 1996). He was also convicted of violating

18 U.S.C. 924(c)(1), which criminalizes using or carrying a firearm during a drug

trafficking crime, and engaging in a continuing criminal enterprise (CCE) in violation of

21 U.S.C. 848. Id. Black was sentenced to consecutive terms of life in prison and sixty

months. Id. The United States Court of Appeals for the Fourth Circuit affirmed the

judgment of the district court on September 18, 1996. Id.

       In early 2001, Black filed a 28 U.S.C. § 2255 motion with the sentencing court,

which denied the motion as untimely. United States v. Black, 19 Fed. Appx. 78 (4th Cir.

2001). He pursued an appeal, and on September 19, 2001, the Fourth Circuit agreed with

the district court’s conclusion that the § 2255 motion was untimely, denied a certificate of

appealability and dismissed the appeal.

       On May 2, 2007, Black filed a petition for writ of habeas corpus under 28 U.S.C.

§ 2241 in the Middle District of Pennsylvania to challenge his 1994 conviction. The

district court dismissed the petition on the ground that Black could only challenge his

conviction via a § 2255 motion. Black timely appealed and both sides have filed motions

with this Court for summary action.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a).

We exercise plenary review over the district court’s legal conclusions and apply a clearly

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erroneous standard to its factual findings. See Cradle v. United States ex rel. Miner, 290

F.3d 536, 538 (3d Cir. 2002). Upon review, we agree with the district court’s dismissal.

       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, 249-251 (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, 290 F.3d at 538.

       On appeal, Black argues that his 28 U.S.C. § 924(c) conviction must be vacated in

light of the Supreme Court’s decision in Bailey v. United States, 516 U.S. 137 (1995) and

Bousley v. United States, 532 U.S. 614 (1998).1 The Fourth Circuit, however, found

Black’s Bailey claim untimely under the applicable one-year period of limitation. Section

2255 is not inadequate or ineffective merely because the petitioner is unable to meet

certain procedural requirements, such as the one-year period of limitation or the stringent

gatekeeping requirements for filing a second or successive petition. Cradle, 290 F.3d at

539. We agree with the district court that “to allow Black to file a habeas petition in the


       1
       In Bailey, the Court held that § 924(c)(1)’s “use” prong requires the Government
to show “active employment of the firearm.” In Bousley, the Court determined that the
Bailey decision applied retroactively. Bousley did not address whether a Bailey claim
could be brought in a § 2241 petition.

                                             -3-
district of confinement asserting the same Bousley claim raised in previously

unsuccessful collateral attacks . . . would obliterate congressional attempts to promote

finality in federal criminal cases.”

       Our decision in Dorsainvil created a narrow exception to the rule that a § 2255

petition must be used to challenge the validity of a federal sentence. Specifically, the

exception in Dorsainvil is limited to a prisoner in an “unusual position . . . who had no

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

substantive law may negate . . . .” Dorsainvil, 199 F.3d at 251. Black brought his § 2255

petition in the sentencing court over four years after the Supreme Court decision in

Bailey. Thus, he does not fall within the ambit of Dorsainvil.

       Black also attempts to rely on United States v. Amen, 831 F.2d 373 (2d Cir. 1987)

to attack his sentence. In Amen, the Second Circuit held that “because section 848

applies only to a person in charge of a CCE, one cannot incur liability for aiding and

abetting such a person.” Id. at 381. Black was convicted of engaging in a continuing

criminal enterprise and not aiding and abetting a CCE. In any event, this is also a claim

that Black had an opportunity to litigate in his previous § 2255 petition in the Fourth

Circuit. Black may not use a § 2241 petition to make an end run around § 2255’s

limitations on successive motions for relief.

       Accordingly, for the reasons given, we will grant appellee’s motion for summary

action and affirm. See I.O.P. 10.6. Black’s motion for summary action is denied.



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