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


7-22-2005

Matthews v. Holt
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4524




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Recommended Citation
"Matthews v. Holt" (2005). 2005 Decisions. Paper 787.
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BPS-279                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 04-4524
                                   ________________

                             BARRY LEWIS MATTHEWS,
                                             Appellant

                                            v.

                                    R. WARDEN;
                                  THOMAS MARINO
                      ____________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                              (D.C. Civ. No. 04-cv-01829)
                      District Judge: Honorable John E. Jones, III
                    _______________________________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  June 16, 2005
      Before: RENDELL, FISHER & VAN ANTWERPEN, CIRCUIT JUDGES

                                  (Filed July 22, 2005)

                               _______________________

                                       OPINION
                               _______________________

PER CURIAM

       Appellant, Barry Lewis Matthews, appeals the order of the United States District

Court for the Middle District of Pennsylvania dismissing his petition for writ of habeas

corpus filed pursuant to 28 U.S.C. § 2241. For the reasons that follow, we will summarily
affirm the judgment of the District Court.

       Matthews is a federal prisoner incarcerated at FCI-Schuylkill. In 1994, the United

States District Court for the Western District of Virginia sentenced Matthews to 292

months imprisonment followed by sixty months supervised release on his plea of guilty to

one count of conspiring to possess crack cocaine with intent to distribute in violation of

21 U.S.C. § 846. The United States Court of Appeals for the Fourth Circuit affirmed,

United States v. Matthews, 70 F.3d 1264 (4th Cir. 1995)(table), and the Supreme Court

denied cert., 517 U.S. 1125 (1996). Matthews subsequently filed a motion to vacate his

sentence under 28 U.S.C. § 2255, which the sentencing court denied in January 1998.

The court likewise denied his motion filed pursuant to Fed. R. Civ. P. 60(b), a decision

that was affirmed on appeal. United States v. Matthews, 3 Fed. Appx. 136 (4 th Cir. 2001).

       On August 18, 2004, Matthews filed the current habeas corpus petition under 28

U.S.C. § 2241 in the Middle District of Pennsylvania alleging that his conviction and

sentence violate Blakely v. Washington, 124 S.Ct. 2531 (2004), and Apprendi v. New

Jersey, 530 U.S. 466 (2000). In addition, Matthews asserted that because Blakely is an

intervening change in law that has not been made retroactive, § 2255 is “inadequate or

ineffective” and, thus, § 2241 is available for relief. Adopting the Magistrate Judge’s

Report and Recommendation, the District Court found that Matthews’ petition

challenging his conviction and sentence falls under § 2255, and that § 2255 is not

rendered inadequate or ineffective merely by the petitioner’s inability to meet the



                                             2
stringent requirements for filing a second or successive § 2255 motion. Accordingly, the

District Court dismissed the § 2241 petition for lack of jurisdiction. Matthews timely

appealed and opposes the listing of this appeal for possible summary action.

       Summary action is warranted when “no substantial question” is presented by the

appeal. See 3d Cir. LAR 27.4; Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 539 (3d Cir.

2002). After a careful review of the record, we will summarily affirm.1

       We agree with the District Court that Matthews’ claims fall within the purview of

§ 2255. A federal prisoner’s challenge to the legality of his conviction and sentence must

be raised in a § 2255 motion, except where the remedy under § 2255 would be

“inadequate or ineffective.” 28 U.S.C. § 2255. See In re Dorsainvil, 119 F.3d 245, 249

(3d Cir. 1997). We have held that § 2255 is not “inadequate or ineffective” for prisoners

seeking to raise an Apprendi claim in a § 2241 proceeding. See Okereke v. United States,

307 F.3d 117, 120-21 (3d Cir. 2002). Like Apprendi, Blakely (and, moreover, United

States v. Booker, 125 S. Ct. 738 (2005)),2 did not change the substantive law as to the

elements of the offense for which Matthews was convicted. Although Matthews may

face substantive and procedural hurdles in presenting his claims in a § 2255 motion, that



   1
    In reaching this disposition, we have fully considered, but reject, the arguments
presented in Matthews’ “Response to Court’s Notification of Possible Summary Action.”
   2
     Because Matthews is a federal prisoner sentenced under the U.S. Sentencing
Guidelines, his claim is better expressed in terms of United States v. Booker (applying
Blakely to the federal guidelines). Of course, this makes no difference to the outcome of
this appeal.

                                             3
alone does not render a § 2255 motion an “inadequate or ineffective” remedy. See

Okereke, 307 F.3d at 120-21. The District Court thus properly determined that it lacked

jurisdiction over Matthews’ claims. See In re Dorsainvil, 119 F.3d at 249.

         For the foregoing reasons, we will summarily affirm the judgment of the District

Court.




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