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


9-20-2005

Mesina v. Johns
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2920




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Recommended Citation
"Mesina v. Johns" (2005). 2005 Decisions. Paper 517.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/517


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APS-343                                                     NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                   NO. 05-2920
                                ________________

                        ROMAN CHRISTOPHER MESINA,

                                               Appellant

                                         v.

                             TRACY JOHNS, Warden

                    ____________________________________

                  On Appeal From the United States District Court
                     For the Western District of Pennsylvania
                           (D.C. Civil No. 05-cv-00227J)
                     District Judge: Honorable Kim R. Gibson
                  _______________________________________


                    Submitted For Possible Summary Action
                   Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                August 18, 2005

      Present: SLOVITER, FUENTES AND NYGAARD, CIRCUIT JUDGES

                            (Filed: September 20, 2005)


                            _______________________

                                    OPINION
                            _______________________

PER CURIAM

     Roman Mesina appeals the denial of his petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 by the District Court for the Western District of

Pennsylvania.

       Mesina, currently incarcerated within the Western District of Pennsylvania, was

convicted in the Southern District of Florida for money laundering in 2003 and sentenced

to 151 months imprisonment. The Court of Appeals for the Eleventh Circuit affirmed his

conviction. In January 2005, the United States Supreme Court vacated the judgment and

remanded to the Eleventh Circuit for further consideration in light of United States v.

Booker, 125 S. Ct. 738 (2005). Mesina v. United States, 125 S. Ct. 993 (2005). The

matter is currently pending in the Eleventh Circuit. United States v. Mesina, 11 th Cir. No.

03-14839. According to Mesina, the sentencing court denied his motion for bail pending

the appeal.

       In April 2005, Mesina filed a pro se habeas petition pursuant to 28 U.S.C. § 2241

seeking his release from incarceration and alleging that he was being detained beyond the

portion of his sentence “clearly unaffected” by Booker and Blakely v. Washington, 542

U.S. 296 (2004). The Magistrate Judge recommended summarily dismissing the petition.

The District Court Judge adopted the recommendation and denied the petition.

       The presumptive means for a federal prisoner to challenge to his sentence is to file

a motion pursuant to 28 U.S.C. § 2255 in the sentencing court. 28 U.S.C. § 2255;

Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). A § 2241 petition “shall not

be entertained if it appears that the applicant has failed to apply for [§ 2255] relief . . . to

the court which sentenced him, or that such court has denied him relief, unless it also
appears that the remedy by [§ 2255] motion is inadequate or ineffective to test the legality

of his detention.” 28 U.S.C. § 2255 ¶ 5.

       Mesina’s attempt to distinguish his claim as a challenge to the legality of his

restraint, as opposed to a challenge to his sentence, see Memorandum Brief of Appellant

at 2-3, is to no avail. Mesina’s claim alleges that his sentence is in excess of the

maximum authorized by the Constitution, and thus clearly falls within the scope of §

2255. See 28 U.S.C. § 2255 ¶ 1. Mesina has apparently not sought § 2255 relief in the

sentencing court. Moreover, Mesina has not demonstrated that a § 2255 motion would be

inadequate or ineffective. Neither a delay in submitting a § 2255 motion until the direct

appeals are resolved, nor the sentencing court’s denial of bail renders § 2255 inadequate

or ineffective. See United States v. Pirro, 104 F.3d 297, 299 (9 th Cir. 1997) (discussing

delay pending direct appeal); In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997) (citing

cases regarding denial of relief). Accordingly, Mesina’s § 2241 petition may not be

considered.

       As there is no substantial question presented by this appeal, we will summarily

affirm. Third Circuit LAR 27.4; Third Circuit I.O.P. 10.6. The motion for appointment of

counsel is denied. Tabron v. Grace, 6 F.3d 147, 155-57 (3d Cir. 1993).
