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


6-10-2005

Turner v. Apker
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1141




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Recommended Citation
"Turner v. Apker" (2005). 2005 Decisions. Paper 1029.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1029


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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 05-1141
                                   ________________

                                   QUINCY TURNER,
                                          Appellant

                                             v.

                              CRAIG APKER, Warden
                      ____________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                               (D.C. Civ. No. 04-cv-01251)
                     District Judge: Honorable Thomas I. Vanaskie
                    _______________________________________


                       Submitted Under Third Circuit LAR 34.1(a)
                                    June 10, 2005

           BEFORE: SLOVITER, BARRY and FISHER, CIRCUIT JUDGES

                                  (Filed June 10, 2005)


                               _______________________

                                      OPINION
                               _______________________

PER CURIAM

       Quincy Turner, pro se, appeals from two orders of the United States District Court

for the Middle District of Pennsylvania dismissing his habeas petition filed pursuant to 28
U.S.C. § 2241 for lack of jurisdiction and denying his motion for reconsideration. We

will affirm.

       In 1996, in the United States District Court for the Eastern District of

Pennsylvania, Quincy Turner was convicted of conspiracy and several counts of cocaine

base distribution in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii). He was

sentenced to two hundred thirty-five months imprisonment, five years supervised release

and a five hundred dollar special assessment. On appeal, this Court affirmed his

conviction and sentence. See C.A. No. 96-1660. In 1998, Turner filed a motion to

vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, which was denied

on the merits. In 2001, he filed an application to file a second or successive § 2255

motion, which was also denied. See C.A. No. 01-2442.

       In June 2004, Turner, who is incarcerated at L.S.C.I. Allenwood, filed the instant

petition pursuant to 28 U.S.C. § 2241 in the Middle District of Pennsylvania. In his

petition he claims that he is “actually innocent” of distributing the quantity of cocaine that

was the basis for his sentence and that he should have been sentenced based on the jury’s

finding of an indeterminate amount. The Magistrate Judge recommended that the petition

be dismissed for lack of jurisdiction because the relief Turner seeks is only available

through a § 2255 motion. Turner filed a response to the Magistrate Judge’s Report and

Recommendation in which he agreed that the Middle District lacked jurisdiction and

requested a transfer to the Eastern District. The District Court adopted the Magistrate



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Judge’s Report and Recommendation and dismissed Turner’s petition. Turner filed

“objections” to the District Court’s order, which the District Court construed as a motion

for reconsideration and denied. Turner appealed. We have jurisdiction pursuant to 28

U.S.C. § 1291. Our review of the District Court’s dismissal of a § 2241 petition is

plenary. See Bakhtriger v. Elwood, 360 F.3d 414, 417 (3d Cir. 2004).

       We agree with the District Court that it lacked jurisdiction to consider Turner’s §

2241 petition. A § 2241 petition may not be used to challenge a conviction or sentence

unless a § 2255 motion is “inadequate or ineffective to test the legality of [the] detention.”

See 28 U.S.C. § 2255. The nature of Turner’s claim places his petition squarely within

the scope of § 2255 and, therefore, renders his § 2241 petition, in effect, a second or

successive § 2255 motion subject to the gate-keeping restrictions of the Antiterrorism and

Effective Death Penalty Act (“AEDPA”). The mere fact that AEDPA may prevent his

use of § 2255 does not render it inadequate. See Cradle v. United States ex rel. Miner,

290 F.3d 536, 538-39 (3d Cir. 2002).

       Our review of the District Court’s denial of Turner’s motion for reconsideration is

for abuse of discretion. See Penn W. Assoc. v. Cohen, 371 F.3d 118, 124 (3d Cir. 2004).

Turner presented nothing persuasive to controvert the District Court’s dismissal of his

petition and merely sought to rehash the same issues. The District Court, therefore,

properly denied his motion for reconsideration.




                                              3
      Accordingly, we will affirm the District Court’s orders dismissing Turner’s § 2241

petition and denying his motion for reconsideration.




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