                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-16-2009

Tommy Alexander Sr. v. Troy Williamson
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2978




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Recommended Citation
"Tommy Alexander Sr. v. Troy Williamson" (2009). 2009 Decisions. Paper 1527.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1527


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BLD-288                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-2978
                                      ___________

                             TOMMY ALEXANDER, SR.,
                                             Appellant
                                      v.

                          WARDEN TROY WILLIAMSON
                      ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                           (D.C. Civil Action No. 08-00226)
                     District Judge: Honorable Sylvia H. Rambo
                     ____________________________________

        Submitted for Possible Dismissal Due to a Jurisdictional Defect and for
      Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 September 18, 2008
                Before: MCKEE, RENDELL and SMITH, Circuit Judges

                              (Opinion filed April 16, 2009)

                                       _________

                                       OPINION
                                       _________

PER CURIAM

      Tommy Alexander, Sr., appeals the District Court’s dismissal of a petition for writ

of habeas corpus brought pursuant to 28 U.S.C. § 2241, as well as the District Court’s

subsequent denial of Alexander’s related motion for reconsideration. Because
Alexander’s appeal presents no substantial question, we will summarily affirm.

       In 1990, Alexander was convicted in the Southern District of Texas of multiple

narcotic and firearm counts, which resulted in a sentence of concurrent terms of life

imprisonment. The Court of Appeals for the Fifth Circuit upheld Alexander’s conviction

and sentence on appeal. In 1992, Alexander filed a motion to vacate, set aside, or correct

his sentence pursuant to 28 U.S.C. § 2255 in the Southern District of Texas, which the

court denied and the Fifth Circuit affirmed. Alexander later filed at least two applications

for leave to file successive § 2255 motions with the Fifth Circuit, which denied them.

       In 2004, Alexander filed a petition pursuant to 28 U.S.C. § 2241 in the Eastern

District of Texas, asserting that § 2255 was ineffective or inadequate to test the legality of

his detention. The court denied the petition, and the Fifth Circuit affirmed this ruling on

appeal. On February 5, 2008, Alexander – now incarcerated at USP Lewisburg – filed the

same petition in the Middle District of Pennsylvania, which the court dismissed on

April 1, 2008. This judgment, although styled as an order, also included a brief recitation

of the case’s procedural history and the court’s reasoning for denying the petition. On

April 27, 2008, Alexander submitted a motion for reconsideration of the April 1 order.

See Houston v. Lack, 487 U.S. 266, 276 (1988) (holding that petitioner prisoner’s notice

of appeal was filed at the time he delivered it to prison authorities for forwarding to the

court). On June 12, 2008, the District Court denied Alexander’s motion on the merits,

assuming arguendo that Alexander had timely filed the motion. On June 17, 2008,

Alexander filed a notice of appeal challenging both the April 1 and June 12 orders. The
Clerk listed Alexander’s appeal for possible dismissal for jurisdictional defect and

alternatively for possible summary action.

       The District Court did not set forth its April 1 order dismissing Alexander’s

petition in a separate document as required by Fed. R. Civ. P. 58(a). The order is not a

separate document because it consists of both the District Court’s opinion and the order.

Additionally, the document includes the reasons for the District Court’s denial of the

petition. See In re Cendant Corp. Sec. Litig., 454 F.3d 235, 241 (3d Cir. 2006) (stating

that “an order will be treated as a separate document if it meets three criteria: first, the

order must be self-contained and separate from the opinion; second, the order must note

the relief granted; and third, the order must omit (or at least substantially omit) the

District Court’s reasons for disposing of the parties’ claims”). As such, pursuant to Fed.

R. App. P. 4(a)(7), the April 1 order was not considered entered for 150 days. Alexander

therefore timely filed his notice of appeal. Accordingly, we have jurisdiction over this

appeal under 28 U.S.C. § 1291, and we “exercise plenary review over the District Court’s

legal conclusions and apply a clearly erroneous standard to its factual findings.” Cradle

v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002) (per curiam).

       A motion pursuant to § 2255 is the presumptive means by which a federal prisoner

can contest his conviction or sentence, for a court cannot entertain a § 2241 petition

unless a § 2255 motion would be “inadequate or ineffective to test the legality of his

detention.” See 28 U.S.C. § 2255(e). In Cradle, we explained that “[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 wrongful detention claim.” 290 F.3d at 538. The remedy’s

inefficacy, rather than a prisoner’s inability to use it, is determinative. Id. “Section 2255

is not inadequate or ineffective merely because the sentencing court does not grant relief,

the one-year statute of limitations has expired, or the petitioner is unable to meet the

stringent gatekeeping requirements” for filing a second or successive § 2255 motion. Id.

at 538-39.

       Alexander has failed to demonstrate that a successive § 2255 motion would be

inadequate or ineffective. His appeal, which includes, inter alia, claims of new evidence1

and ineffective assistance of counsel, does not present the “unusual circumstance” in

which a § 2255 motion is inadequate or ineffective. See In re Dorsainvil, 119 F.3d 245,

251 (3d Cir. 1997) (noting that a § 2255 motion would be inadequate or ineffective where

an intervening change in substantive law made the crime for which the petitioner was

convicted non-criminal). Rather, as he concedes, Alexander’s invocation of § 2241 is

grounded in his mere inability to satisfy the requirements for filing a successive § 2255

motion. See Habeas Petition, 37 (“A successive [§ 2255 motion] requires far more than


       1
        The new evidence alleged by Alexander includes a forensic analysis of audiotapes
of conversations involving Alexander, which were played at trial, as well as affidavits
from various witnesses regarding the underlying facts of the case. Much of this
information was or could have been available to Alexander before he filed his original §
2255 motion. Although the forensic analysis was prepared after Alexander filed his
original § 2255 motion, it appears that the delay in obtaining this analysis was due merely
to Alexander’s financial constraints, not his inability to access the tapes prior to filing the
original motion. Moreover, Alexander seemingly could have obtained the affiants’
testimony before filing the original motion.
what Petitioner could show once he had obtained the forensic evidence. As such, the

2255 is inadequate....”).

       For these reasons, we conclude that Alexander’s appeal presents no substantial

question. See Third Circuit LAR 27.4 and I.O.P. 10.6. Accordingly, we will summarily

affirm the judgment of the District Court.
