                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-27-2007

Winters v. Samuels
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1207




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"Winters v. Samuels" (2007). 2007 Decisions. Paper 875.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/875


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CLD-252                                          NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT


                                 No. 07-1207


                            GERALD WINTERS,
                                       Appelant

                                      v.

                               SAMUELS, JR.



                On Appeal From the United States District Court
                          For the District of New Jersey
                           (D.C. Civ. No. 06-cv-05516)
                 District Judge: Honorable Jerome B. Simandle


                  Submitted For Possible Summary Action
                Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                May 31, 2007

          Before: RENDELL, SMITH AND JORDAN, CIRCUIT JUDGES

                            (Filed: June 27, 2007)



                                  OPINION


PER CURIAM
       Gerald Winters appeals from the District Court’s order dismissing his petition for a

writ of habeas corpus under 28 U.S.C. § 2241. Because Winters’ appeal presents no

substantial question, we will grant the Government’s motion for summary affirmance.

       In 1990, a grand jury returned a nine-count indictment against Winters and several

associates. It charged Winters and his co-defendants with racketeering and conspiring to

commit racketeering in violation of RICO, 18 U.S.C. §§ 1962(c) and 1962(d). Winters

was also charged with three counts of conspiring to violate and one count of violating the

Hobbs Act, 18 U.S.C. § 1951, and three counts of violating the Travel Act, 18 U.S.C.

§ 1952. After a lengthy trial the jury returned a mixed verdict. Of the eight co-

defendants charged with RICO conspiracy, only Winters was found guilty. He was also

found guilty of two of the Hobbs Act and one of the Travel Act charges. He was

sentenced to an aggregate term of 415 months’ imprisonment.

       In 1992, we affirmed his conviction, but remanded his case for re-sentencing.

United States v. Winters, 958 F.2d 365 (3d Cir.)(table). After an identical sentence was

imposed by the District Court, he appealed and we affirmed. United States v. Winters, 5

F.3d 1492 (3d Cir. 1993)(table). In 1997, Winters filed a motion to vacate, set aside, or

correct his sentence under 28 U.S.C. § 2255, raising 15 claims. The motion was denied,

he appealed, and we remanded to the District Court for an evidentiary hearing. Winters v.

United States, No. 98-6078 (3d Cir. Sept. 20, 1999). After, the hearing, the District Court

again denied the motion and we denied Winters’ request for a certificate for appealability.

United States v. Winters, No. 04-1408 (3d Cir. August 14, 2001).

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       In 2001, Winters filed an application to file a second or successive § 2255 motion

based on Apprendi v. New Jersey, 530 U.S. 466 (2000), which was denied. In re Winters,

No. 01-2705 (3d Cir. order entered on Sept. 25, 2001). In 2004, Winters filed a petition

for habeas corpus under 28 U.S.C. § 2241, arguing that, under Scheidler v. National

Organization of Women, Inc., 537 U.S. 393 (2003), he was “actually innocent” of the

Hobbs Act charges. The District Court found that Scheidler was inapplicable to his case,

and dismissed Winters’ petition. Winters v. Derosa, No. 04-cv-0736 (D. N.J. March 21,

2005). He did not appeal.

       Winters then filed this petition for habeas corpus under § 2241. In the petition he

argued that, because none of his co-conspirators was convicted, he necessarily was

innocent of the conspiracy to commit racketeering charge. He also argued that, if the

conspiracy to commit racketeering involved an unindicted co-conspirator, then the

conviction was barred by the statute of limitations. The District Court found that, despite

its caption, his petition was a second or successive § 2255 motion and dismissed it for

lack of jurisdiction.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of a District

Court's decision to dismiss a § 2241 petition is plenary. See Cradle v. U.S. ex rel. Miner,

290 F.3d 536, 538 (3d Cir. 2002). We may affirm the District Court on any ground

supported by the record. Tourscher v. McCullough, 184 F.3d 236, 239 (3d Cir. 1999).

       Generally, a challenge to the validity of a federal conviction or sentence must be

brought in a § 2255 motion. See Davis v. United States, 417 U.S. 333, 343 (1974). The

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“savings clause” of § 2255 provides that a federal prisoner may proceed under § 2241

only if the remedy provided by § 2255 is inadequate or ineffective to test the legality of

his detention. See § 2255; In re Dorsainvil, 119 F.3d 245, 249-51 (3d Cir. 1997). The

fact that a petitioner has previously been denied relief, cannot meet the requirements for

filing a second or successive § 2255 motion, or is unable to comply with § 2255's statute

of limitations, is insufficient to justify proceeding under § 2241. Cradle, 290 F.3d at 538.

       Winters cannot show that § 2255 was inadequate or ineffective to bring this claim

and, thus, he cannot proceed via § 2241. Winters merely asserts that he is “actually

innocent” of the RICO conspiracy charge and that that fact entitles him to proceed under

§ 2241. However, Winters has raised these same claims before and was found by this

Court to be actually guilty. His claim that he must be innocent of conspiracy to commit

racketeering because his co-conspirators were acquitted was raised and disposed of on

direct appeal. In his § 2255 motion, he raised the same statute of limitations argument,

which was also rejected.

       In short, upon consideration of Winters’ petition and “Motion Opposing Summary

Action,” we conclude that his appeal presents us with no substantial question. See Third

Circuit L.A.R. 27.4 and I.O.P. 10.6. Accordingly, we will summarily affirm the District

Court’s order.




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