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


7-18-2007

Burrell v. Lindsay
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1252




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Recommended Citation
"Burrell v. Lindsay" (2007). 2007 Decisions. Paper 731.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/731


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BLD-273                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       NO. 07-1252
                                    ________________

                                  STEPHEN BURRELL,
                                       Appellant

                                             v.

                               CAMERON LINDSAY
                       ____________________________________

                     On Appeal From the United States District Court
                         For the Middle District of Pennsylvania
                             (M.D. Pa. Civ. No. 06-cv-00904)
                       District Judge: Honorable Edwin M. Kosik
                     _______________________________________


 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  June 21, 2007

      Before: MCKEE, FUENTES AND VAN ANTWERPEN, CIRCUIT JUDGES

                                  (Filed July 18, 2007 )

                               _______________________

                                       OPINION
                               _______________________

PER CURIAM

       Stephen Burrell, a federal prisoner, appeals from an order of the United States

District Court for the Middle District of Pennsylvania dismissing his petition for a writ of

habeas corpus under 28 U.S.C. § 2241 and an order denying his motion for
reconsideration. Because this appeal does not raise a substantial question, we will grant

Appellee’s motion for a summary affirmance of the District Court’s orders.

       In 2000, Burrell was convicted in the United States District Court of Nevada of

possession of a firearm by a convicted felon. Burrell was sentenced to 120 months in

prison. The United States Court of Appeals for the Ninth Circuit affirmed the conviction

and sentence, and the United States Supreme Court denied certiorari. In 2002, Burrell

filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. The District Court

denied the motion, and the Ninth Circuit Court of Appeals denied Burrell’s request for a

certificate of appealability.

       In 2006, Burrell filed in the United States District Court for the Middle District of

Pennsylvania a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Burrell

claimed that the sentencing court violated Apprendi v. New Jersey, 530 U.S. 466 (2000),

and its progeny, and that his sentence was improperly based on an offense that he was

acquitted of. Burrell acknowledged that he did not satisfy § 2255's gatekeeping

requirements for filing a second or successive motion to vacate his sentence, but he

argued that a § 2241 habeas petition was his only available remedy.

       The District Court did not err in dismissing Burrell’s § 2241 petition. Motions

under § 2255 are the presumptive means by which federal prisoners can challenge their

convictions or sentences on constitutional grounds. Okereke v. United States, 307 F.3d

117, 120 (3d Cir. 2002). Although a petitioner may challenge a conviction pursuant to



                                              2
§ 2241 where a § 2255 motion would be “inadequate or ineffective,” a § 2255 motion is

not inadequate or ineffective merely because the sentencing court denied relief, or

because the petitioner is unable to meet the gatekeeping requirements of § 2255. Cradle

v. United States, 290 F.3d 536, 538-39 (3d Cir. 2002). Rather, a § 2255 motion is

inadequate or ineffective only where the petitioner shows 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. Id. at 538.

       Burrell has not made such a showing. We held in Okereke that § 2255 was not

inadequate or ineffective to raise an Apprendi argument. 307 F.3d at 120-21. Burrell

may not evade § 2255's gatekeeping requirements for filing a second or successive motion

to vacate his sentence by seeking relief under § 2241. The District Court also did not

abuse its discretion in denying Burrell’s motion for reconsideration.

       Accordingly, we will grant Appellee’s motion for a summary affirmance of the

District Court’s orders.




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