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


11-6-2007

Adams v. Schultz
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2838




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Recommended Citation
"Adams v. Schultz" (2007). 2007 Decisions. Paper 256.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/256


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BLD-9                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07- 2838
                                      ___________

                                  TIMOTHY ADAMS,
                                       Appellant

                                             v.

                               PAUL SCHULTZ, Warden

                      ____________________________________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                               (D.C. Civil No. 07-cv-02133)
                      District Judge: Honorable Renee Marie Bumb
                      ____________________________________

   Submitted for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 October 12, 2007
              Before: MCKEE, RENDELL and SMITH, Circuit Judges

                           (Opinion filed: November 6, 2007)
                                        _________

                                        OPINION
                                       _________

PER CURIAM

      Timothy Adams appeals the District Court’s dismissal of a habeas corpus petition

he filed pursuant to 28 U.S.C. § 2241. For the following reasons we will affirm.

      In 1995 Adams was convicted in the United States District Court for the Middle

District of North Carolina of conspiracy to distribute “crack” cocaine. After the Fourth
Circuit Court of Appeals affirmed, in 1997 Adams filed a motion pursuant to 28 U.S.C. §

2255 challenging his conviction and sentence. The District Court denied the motion and

the Fourth Circuit Court of Appeals declined to issue a certificate of appealability.

Adams then filed various additional motions challenging his conviction and sentence, all

without success. Once again, the Fourth Circuit Court of Appeals affirmed.

       Adams next tried his luck in the United States District Court for the District of

New Jersey, filing a Complaint for Independent Action under 28 U.S.C. § 1331 and two

habeas corpus petitions pursuant to 28 U.S.C. § 2241. These too were unsuccessful.

       Undeterred, in 2007 Adams filed yet another § 2241 petition, this time arguing that

in light of United States v. Booker, 543 U.S. 220 (2005), he is actually innocent of the

aggravated substantive offense because the facts on which the enhancement of his

sentence was based were not found by the jury beyond a reasonable doubt. Adams states,

inter alia, that he resorted to § 2241 because § 2255 is inadequate or ineffective in not

providing “a remedy to accommodate a fundamental change in law which shows that

Adams is ‘actually innocent’ of the conviction and sentence.”

       The District Court disagreed, explaining that § 2255 is the presumptive means for

collaterally challenging a federal conviction or sentence unless § 2255 proves “inadequate

or ineffective;” and that § 2255 is not rendered inadequate or ineffective merely by

AEDPA’s restrictions on filing second or successive § 2255 motions. Rather, to proceed

under § 2241 the petitioner must show that he had “no earlier opportunity to challenge his

conviction for a crime that an intervening change in substantive law may negate.” In re

                                              2
Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). The District Court further explained that

no intervening law has decriminalized the actions on which Adams’ conviction was based

and that the case on which he relies, Booker, does not apply retroactively to cases on

collateral review. Lloyd v. United States, 407 F.3d 608 (3d Cir. 2005). Finding no other

basis for exercising jurisdiction under § 2241, the District Court dismissed Adams’

petition. This appeal followed.1

       We agree with the reasoning of the District Court. Adams attempts to fit his claim

into the Dorsainvil exception by arguing that in light of Booker he is actually innocent of

his enhanced sentence. However, even if retroactivity were not a problem, such a claim

does not fit the Dorsainvil exception because it “does not demonstrate that [the petitioner]

was convicted of a nonexistent offense and has no effect on whether the facts of his case

would support his conviction for the substantive offense.” Padilla v. United States, 416

F.3d 424, 427 (5th Cir. 2005).

       In short, the appeal does not present a substantial issue. Accordingly, we will

summarily affirm the judgment of the District Court.




   1
    We have jurisdiction pursuant to 28 U.S.C. § 1291 and review the District Court’s
judgment de novo. Okereke v. United States, 307 F.3d 117 (3d Cir. 2002).


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