                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-27-2006

Abdel-Whab v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4026




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"Abdel-Whab v. USA" (2006). 2006 Decisions. Paper 1380.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1380


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BPS-161                                                      NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-4026


                             USAMA S. ABDEL-WHAB,

                                                 Appellant

                                            v.

                           UNITED STATES OF AMERICA


                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                              (D.C. Civ. No. 05-cv-01636)
                    District Judge: Honorable James F. McClure, Jr.


                      Submitted Under 28 U.S.C. § 1915(e)(2)(B)
                                  March 16, 2006

             BEFORE: RENDELL, AMBRO and BECKER, Circuit Judges

                                (Filed : March 27, 2006)


                                       OPINION


PER CURIAM

      Appellant Usama Abdel Whab (a/k/a/ Usama Abdel Wahab) appeals from the

District Court’s order dismissing his complaint seeking a declaratory judgment pursuant

to 28 U.S.C. §§ 2201, 2202. Adbel Whab is currently detained by the Bureau of
Immigration and Customs Enforcement at the Pike County Correctional Facility in

Pennsylvania. Essentially, his complaint seeks a ruling that his conviction in the

Southern District of New York is invalid and must be vacated. We note that his

numerous challenges to his conviction and sentence under 28 U.S.C. § 2241 and 28

U.S.C. § 2255 have been unsuccessful.

       It is well established that habeas corpus is the exclusive avenue by which a person

in custody may challenge the fact or duration of a conviction or sentence. See Heck v.

Humphrey, 512 U.S. 477, 481-82 (1994). Accordingly, the Declaratory Judgment Act

cannot operate as a substitute or alternative remedial basis to 28 U.S.C. § 2255. See

United States v. Gutierrez, 116 F.3d 412, 415 (9th Cir. 1997); Chatman-Bey v.

Thornburgh, 864 F.2d 804, 808-10 (D.C. Cir. 1988) (en banc); Forsythe v. Ohio, 333 F.2d

678, 679 (6th Cir. 1964). Thus, we will dismiss the appeal pursuant to 28 U.S.C. §

1915(e)(2)(B)(i).




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