                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-14-2008

Clinton Bush v. David Elbert
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2929




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"Clinton Bush v. David Elbert" (2008). 2008 Decisions. Paper 227.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/227


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HLD-1     (October 2008)                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-2929
                                      ___________

                                    CLINTON BUSH,
                                                        Appellant
                                            vs.

                                 DAVID J. ELBERT
                       ____________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                            (M.D. Pa. Civ. No. 08-cv-00217)
                     District Judge: Honorable Richard P. Conaboy
                      ____________________________________

          Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 OCTOBER 31, 2008
           Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges

                               (filed: November 14, 2008 )
                                      _____________

                                       OPINION
                                     _____________

PER CURIAM.

              Clinton Bush, a federal prisoner, appeals an order of the United States

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

pursuant to 28 U.S.C. § 2241. We will affirm.

                                             1
              Bush pleaded guilty in December 1998 in the United States District Court

for the Eastern District of Pennsylvania to one count of possession of a firearm by a

convicted felon in violation of 18 U.S.C. § 922(g), and was sentenced to 180 months

imprisonment with a five year period of supervised release. Bush apparently waived his

appellate rights. In March 2000, he filed a motion pursuant to 28 U.S.C. § 2255 alleging

that counsel rendered ineffective assistance. New counsel was appointed and an amended

motion adding a claim based on Apprendi v. New Jersey, 503 U.S. 466 (2000), was filed

in January of the following year. After an evidentiary hearing, the District Court

concluded that Bush’s claims were without merit and denied the motion. Bush timely

appealed. This Court denied his request for a certificate of appealability in an order

issued on September 30, 2002, see C.A. No. 01-3839, and the Supreme Court

subsequently denied his petition for a writ of certiorari. Bush then sought relief from

judgment in a motion filed pursuant to Fed. R. Civ. P. 60(b)(6) in September 2003. In his

Rule 60(b) motion, Bush once again claimed that he received ineffective assistance of

counsel – both during his initial proceedings and at the collateral challenge stage. Bush’s

motion fared no better than his § 2255 motion, and was denied by the District Court in an

order entered on October 1, 2003. After unsuccessfully seeking reconsideration, Bush

appealed. We denied his motion for a certificate of appealability in an order issued on

May 28, 2004. See C.A. No. 03-4027.




                                             2
              Undeterred, Bush thereafter sought relief in the United States District Court

for the Middle District of Pennsylvania by filing a habeas petition pursuant to 28 U.S.C. §

2241 asserting that his federal sentence was improperly enhanced pursuant to the

provisions of the Armed Career Criminal Act (“ACCA”). Because Bush failed to

establish that his remedy under § 2255 was inadequate or ineffective under the standards

announced in In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997), the District Court entered an

order on July 20, 2005 dismissing the petition without prejudice to Bush’s decision as to

whether to reassert his claim in either a § 2255 motion or an application seeking leave to

file a second or successive § 2255 motion. Bush did neither and, instead, returned to the

Eastern District where he filed a motion “to correct judgment and commitment order”

seeking to have the District Court – purportedly pursuant to Rule 36 of the Federal Rules

of Criminal Procedure – correct the judgment order to reflect the reason why he received

a term of imprisonment of 180 months instead of 120 months. In an order entered on

March 21, 2007, the District Court denied Bush’s motion noting that he was subject to a

term of imprisonment of not less than 180 months under 18 U.S.C. § 924(e)(1). Bush

appealed and we summarily affirmed the District Court’s order on December 12, 2007.

See C.A. No. 07-1974.

              Not to be discouraged, Bush returned to the Middle District of Pennsylvania

less than two months later with a second § 2241 petition seeking immediate release from

confinement. Bush continued with his challenge to the 180-month term of imprisonment,



                                             3
arguing that the maximum sentence for a § 922(g)(1) conviction is 120 months and that,

therefore, his sentence is illegal. As with his previous § 2241 petition, the District Court

determined that Bush failed to establish that his remedy under § 2255 is inadequate or

ineffective to test the legality of his continued detention, and thus dismissed it without

prejudice to his decision to either file a § 2255 motion or to seek leave from this Court to

file a second or successive § 2255 motion. This timely appeal followed.

              We have jurisdiction pursuant to 28 U.S.C. § 1291. For essentially the

same reasons set forth by the District Court, we will summarily affirm the order of

dismissal.

              As the District Court properly concluded, a § 2255 motion is the

presumptive means for a federal prisoner to challenge the validity of a conviction or

sentence, unless such a motion would be “inadequate or ineffective to test the legality of

his detention.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002); 28 U.S.C.

§ 2255 ¶ 5. A § 2255 motion is inadequate or ineffective only when “some limitation of

scope or procedure” prevents a movant from receiving an adjudication of his claim.

Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). Section 2255 is

not inadequate or ineffective merely because a prior motion has been unsuccessful or

because Bush is unable to meet the stringent gatekeeping requirements for filing a second

or successive § 2255 motion under the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”). Okereke, 307 F.3d at 120-21. See also Cradle, 290 F.3d at 539.



                                              4
              The “safety valve” provided under § 2255 is extremely narrow and has been

held to apply in unusual situations, such as those in which a prisoner has had no prior

opportunity to challenge his conviction for a crime later deemed to be non-criminal

because of an intervening change in the law. See Okereke, 307 F.3d at 120 (citing In re

Dorsainvil, 119 F.3d at 251). Such is not the case here. Bush makes no allegation that he

is actually innocent of the crime for which he was convicted. We agree with the District

Court that Bush’s claim is clearly a challenge to the legality of the criminal sentence

imposed by the United States District Court for the Eastern District of Pennsylvania in

United States v. Bush, E.D. Pa. Crim. No. 98-cr-00370. The exception identified in In re

Dorsainvil is simply inapplicable, and Bush may not evade the gatekeeping requirements

of § 2255 by seeking relief under § 2241.

              Because the § 2241 petition was properly dismissed and the District Court

committed no abuse of discretion in denying Bush’s reconsideration motion, see Max’s

Seafood Café v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999), no substantial question is

presented by this appeal. Accordingly, the District Court’s order of dismissal will be

affirmed. See Third Circuit LAR 27.4 and I.O.P. 10.6. Bush’s “Ex Parte Special

Motion...” is denied.




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