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


4-21-2006

Deshields v. Smith
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3677




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Recommended Citation
"Deshields v. Smith" (2006). 2006 Decisions. Paper 1232.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1232


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CPS-181                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 05-3677
                                   ________________

                                 WAJID DESHIELDS,
                                         Appellant

                                             v.

                        JOE SMITH, Warden, USP Lewisburg
                      ____________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                        (M.D. PA. Civ. No. 05-cv-01266-RPC)
                     District Judge: Honorable Richard P. Conaboy
                    _______________________________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                 March 30, 2006

              Before: BARRY, SMITH AND NYGAARD, Circuit Judges

                                 (Filed: April 21, 2006 )


                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Wajid Deshields appeals pro se from an order of the United States District Court

for the Middle District of Pennsylvania dismissing without prejudice his habeas petition

filed pursuant to 28 U.S.C. § 2241 and § 1651. In 2001, while serving a state sentence on
related charges, Deshields pled guilty in District Court to possession of a firearm in a

drug trafficking crime, 18 U.S.C. § 924(c)(1), and was sentenced to sixty months

incarceration to run consecutively to the Pennsylvania sentence. Deshields did not

appeal. In March 2002, Deshields filed a motion to vacate pursuant to 28 U.S.C. § 2255,

claiming that his federal conviction violated the Fifth Amendment’s Double Jeopardy

Clause. The sentencing court denied § 2255 relief. Deshields did not appeal.

       On June 22, 2005, Deshields filed a § 2241 petition asserting that his guilty plea

was not knowing and intelligent because he was not informed by the court or by counsel

of the elements of the firearm charge. Specifically, he contended that he was not made

aware that a conviction under § 924(c)(1) required proof that his firearm was actively

employed in drug trafficking. Deshields also claimed that the Department of Justice

should have exercised discretion under the “Petite Policy” and dismissed the indictment

because he had already been convicted in Pennsylvania on related charges and thus

federal prosecution was unnecessary. Acknowledging that he had not sought leave for

permission to file a second or successive § 2255 motion pursuant to 28 U.S.C. § 2244,

Deshields asserted that he filed a § 2241 petition because he had no other available means

to challenge the constitutionality of his conviction. Alternatively, Deshields sought

coram nobis relief.

       The District Court summarily dismissed the § 2241 petition without prejudice

pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States

District Courts, 28 U.S.C. foll. § 2254 (1977) (applicable to § 2241 petitions pursuant to

                                             2
Rule 1(b)), and later denied Deshields’s motion to alter judgment. Deshields timely

appealed. The appeal was terminated for failure to pay fees. Deshields has filed a motion

to re-open and a motion to proceed in forma pauperis. We grant both motions.

       We have jurisdiction pursuant to 28 U.S.C. 1291.1 In February 2006, the parties

were notified that the Court sua sponte may take summary action on an appeal if it

appears that no substantial question is presented or that subsequent precedent or change in

circumstances warrants such action. See Third Circuit I.O.P. 10.6.2 For essentially the

same reasons set forth by the District Court in its Order entered July 11, 2005, we will

summarily affirm.

       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 the sentencing court does not grant relief, the



       1
          No certificate of appealability is necessary to appeal the denial of this petition for
a writ of coram nobis. United States v. Baptiste, 223 F.3d 188 (3d Cir. 2000).
       2
        Although the parties were advised that they could submit argument supporting or
opposing summary action, no responses have been filed.

                                               3
one-year statute of limitations has expired, or the petitioner is unable to meet the stringent

gatekeeping requirements of the amended § 2255.” Id. at 539.

       Deshields admits that he has yet to apply for relief on his challenge to his sentence

by filing an application with this Court for permission to file a “second or successive” §

2255 motion. Moreover, the “safety valve” provided under section 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 by an intervening change in law. See Okereke, 307 F.3d at 120 (citing In re

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

nor could he, that he is actually innocent of the crime for which he was convicted. The

exception identified in In re Dorsainvil is simply inapplicable, and Deshields is not

entitled to seek relief under § 2241.

       Coram nobis relief is an extraordinary remedy traditionally used to attack

convictions with continuing consequences when the petitioner is no longer “in custody”

for § 2255 purposes. Baptiste, 223 F.3d at 189. Because Deshields is still serving his

sentence of imprisonment, he is still “in custody” and, thus, the District Court correctly

held that coram nobis relief is not available to him.

       Because the petition was properly dismissed and no substantial question is

presented by this appeal, the District Court’s judgment will be affirmed. See Third

Circuit LAR 27.4 and I.O.P. 10.6.



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