ALD-238                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 18-1550
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                JASON SHEPPARD,
                                                 Appellant
                        __________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                           (D.C. Crim. No. 10-cr-00119-001)
                              District Judge: Cathy Bissoon
                       __________________________________

                       Submitted for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    June 14, 2018
              Before: MCKEE, VANASKIE and SCIRICA, Circuit Judges

                             (Opinion filed: August 6, 2018)

                                        _________

                                        OPINION *
                                        _________


PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Jason Sheppard appeals from an order of the District Court dismissing his petition

for writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons that follow, we

will summarily affirm.

       Sheppard, a federal prisoner, pleaded guilty in the United States District Court for

the Western District of Pennsylvania to one count of wire fraud. The District Court

sentenced him on June 12, 2012 to a term of imprisonment of 55 months and three years

of supervised release, and he was ordered to make restitution. Although Sheppard

waived the right to appeal or collaterally challenge his conviction and sentence, he

nevertheless has filed numerous unsuccessful § 2255 motions, 28 U.S.C. § 2255, and

numerous unsuccessful Rule 60(b) motions, Fed. R. Civ. P., seeking relief from his

conviction and sentence.

       On March 9, 2018, Sheppard, then incarcerated at the Federal Correctional

Institution Elkton, in Lisbon, Ohio (“FCI Elkton”), filed a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2241 in the sentencing court in his criminal case, United

States v. Sheppard, D.C. Crim. No. 10-cr-00119, in which he challenged his conviction

and sentence. Sheppard claimed that in July, 2012 he began to work on his collateral

appeal with Candace Cain of the Office of the Federal Defender; he sought to pursue a

claim of ineffective assistance of trial counsel in connection with his plea. Cain

eventually withdrew, apparently in November, 2012. Sheppard then pursued his § 2255

motion pro se but was unsuccessful in obtaining relief. After his original § 2255 motion

was denied, Sheppard received new evidence allegedly showing that his trial counsel had

operated under a conflict of interest during the plea process. Sheppard “went to Cain for

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assistance” but she again declined to assist him. Sheppard alleged in his § 2241 petition

that Cain’s abandonment of him was a violation of his right to post-conviction counsel

pursuant to the Sixth Amendment, citing Martinez v. Ryan, 566 U.S. 1 (2012) (holding

that claim that state post-conviction counsel was ineffective is not cognizable in federal

habeas but may qualify as cause to excuse default of substantial claim of ineffective

assistance of trial counsel), and Trevino v. Thaler, 569 U.S. 413 (2013). 1 Sheppard

alleged that he had a substantial claim of trial counsel ineffectiveness based on his new

evidence of a conflict of interest, and noted that the Court of Appeals for the Seventh

Circuit, in Ramirez v. United States, 799 F.3d 845 (7th Cir. 2015), permitted a federal

prisoner with a claim that his § 2255 counsel had been ineffective to proceed under

Federal Rule of Civil Procedure 60(b).

       In an order entered on March 12, 2018, the District Court dismissed Sheppard’s §

2241 in a “text-only” entry on the criminal docket “for the same reasons as stated in the

Order dated 3/23/15 (Doc. 215).” In that March, 2015 Order and Memorandum, the

District Court dismissed a § 2241 petition filed by Sheppard in March, 2017 for lack of

jurisdiction because motions pursuant to 28 U.S.C. § 2255 are the presumptive means by

which federal prisoners can challenge their convictions or sentences. The Court rejected

Sheppard’s argument that a § 2255 motion is an inadequate and ineffective vehicle for



1
  Martinez applies to initial-review collateral proceedings. 566 U.S. at 9. In Trevino, the
Supreme Court held that the cause exception recognized in Martinez also applies where a
state’s procedural framework makes it “highly unlikely” that a typical defendant will
have a meaningful opportunity to raise ineffective assistance claims on direct appeal. 569
U.S. at 429.
                                             3
raising a claim based on Martinez and Trevino, citing a not precedential decision of this

Court for the proposition that Martinez does not apply to federal prisoners.

       Sheppard appeals. 2 Our Clerk advised him that the appeal was subject to

summary action under Third Cir. LAR 27.4 and I.O.P. 10.6.

       We will summarily affirm the order of the District Court dismissing Sheppard’s §

2241 petition for lack of jurisdiction, with a modification, because it clearly appears that

no substantial question is presented by the appeal, Third Circuit LAR 27.4 and I.O.P.

10.6. A petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 must be bought

in the district where the prisoner is confined and the prisoner must name the custodian at

the facility where he is being held as the respondent. See Rumsfeld v. Padilla, 542 U.S.

426, 435 (2004) (“The plain language of the habeas statute thus confirms the general rule

that for core habeas petitions challenging present physical confinement, jurisdiction lies

in only one district: the district of confinement.”). See also 28 U.S.C. § 2241(a). The

District Court lacked jurisdiction here because Sheppard did not file his § 2241 petition in

the district where he was confined, that is, the Northern District of Ohio, nor did he

properly name as the respondent the Warden of FCI Elkton.

       We further conclude that it was not necessary for the District Court to have

transferred the matter to the Northern District of Ohio in the interest of justice, see In re:

Nwanze, 242 F.3d 521, 526 (3d Cir. 2001) (assuming that transfer of § 2241 petition to

another district where jurisdiction is proper is permitted under 28 U.S.C. § 1404(a)).


2
 A certificate of appealability is not required to appeal from the dismissal of a § 2241
petition. See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir. 2009).
                                               4
“Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal

prisoners can challenge their convictions or sentences[.]” Okereke v. United States, 307

F.3d 117, 120 (3d Cir. 2002). Section 2255(e) of title 28, also known as the “savings

clause,” provides, however, that an application for a writ of habeas corpus may proceed if

“it ... appears that the remedy by [§ 2255] motion is inadequate or ineffective to test the

legality of [a prisoner’s] detention.” 28 U.S.C. § 2255(e). In In re Dorsainvil, 119 F.3d

245, 251 (3d Cir. 1997), we held that the District Court had jurisdiction to hear a federal

prisoner’s claim under § 2241 even though he did not meet the gatekeeping requirements

of § 2255(h), where an intervening U.S. Supreme Court case rendered the conduct of

which he was convicted no longer criminal and where he did not have an earlier

opportunity to present his claim.

       Sheppard argues that Martinez requires application of the savings clause to his

circumstances to permit consideration on the merits of his Sixth Amendment claim based

on trial counsel’s alleged conflict of interest. We do not agree. Martinez operates as a

gateway through which a defaulted and substantial claim of trial counsel ineffectiveness

brought by a state prisoner may be considered on the merits. In Cox v. Horn, 757 F.3d

113, 124-26 (3d Cir. 2014), we held that Martinez, which represented a change in

decisional law, in conjunction with equitable considerations, could suffice to entitle a

state petitioner to Rule 60(b) relief. Because Sheppard has cited the Ramirez case, we

will assume arguendo that Martinez may apply to federal prisoners, but, even so, it would

necessarily follow from our decision in Cox that a Martinez claim which arises after a

federal prisoner’s original § 2255 proceedings have come to an end, may be pursued in a

                                              5
Rule 60(b) motion to reopen the § 2255 judgment. Section 2255 together with Rule 60(b)

thus plainly is not inadequate or ineffective to test the legality of Sheppard’s conviction

and sentence such that he may resort to a § 2241 habeas corpus petition. Although our

analysis is based on the law in this circuit, Sheppard has not argued that the law in the

Sixth Circuit favors application of the savings clause of § 2255(e) here, and thus a

transfer in the interest of justice was not required.

       For the foregoing reasons, we will summarily affirm the order of the District Court

dismissing Sheppard’s March, 2018 § 2241 petition, with the modification noted.




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