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


4-16-2007

USA v. Kent
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4802




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Recommended Citation
"USA v. Kent" (2007). 2007 Decisions. Paper 1287.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1287


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DLD-160                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                             Nos. 06-4802 & 06-4952
                               ________________

                         UNITED STATES OF AMERICA

                                        v.

                             JAMES KENT, Appellant

                                        &

                             JAMES KENT, Appellant

                                        v.

                         UNITED STATES OF AMERICA
                              ________________

                  On Appeal From the United States District Court
                      For the Eastern District of Pennsylvania
              (D.C. Crim. No. 02-cr-00065-2 & Civ. No. 06-civ-04764)
                    District Judge: Honorable Harvey Bartle, III
                                ________________

Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
                   Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  March 15, 2007

             Before:    BARRY, AMBRO AND FISHER, Circuit Judges

                              (Filed: April 16, 2007)
                               ________________

                                   OPINION
                               ________________
PER CURIAM

              James Kent appeals from an order denying his petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2241. He also filed a motion for bail. Because we

conclude that Kent’s appeal presents no substantial question, we will summarily affirm

and will deny his bail motions.

              In 2002, Kent was convicted of possession of a firearm by a convicted felon

in violation of 18 U.S.C. § 922(g)(1). He was sentenced to 112 months imprisonment and

three years of supervised release. This Court affirmed the conviction on appeal. See

United States v. Kent, 86 F. Appx. 512 (3d Cir. 2004)(not precedential).

              In December 2004, Kent filed a motion to vacate, set aside or correct this

sentence pursuant to 28 U.S.C. § 2255. The District Court denied the motion on the

merits and this Court denied a certificate of appealability in May 2005. Subsequently,

this Court denied Kent’s application to file a second or successive § 2255 motion on

October 16, 2006.

              Next, Kent filed a petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2241. First, Kent argued that his waiver of rights under the Interstate Agreement on

Detainers was unconstitutional. Second, Kent argued that the District Court lacked

jurisdiction to impose the sentence. The District Court denied the petition after

determining that Kent was attempting to circumvent the gatekeeping requirements of

§ 2255. Kent filed a timely notice of appeal.

              A federal prisoner’s challenge to the legality of his sentence and conviction

                                             2
must be raised in a § 2255 motion, except where the remedy under § 2255 would be

inadequate or ineffective. See 28 U.S.C. § 2255; In re Dorsainvil, 119 F.3d 245, 249 (3d

Cir. 1997). “A § 2255 motion is inadequate or ineffective only where the petitioner

demonstrates that some limitation of scope or procedure would prevent a § 2255

proceeding from affording him a full hearing and adjudication on his wrongful detention

claim.” Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002)(per

curiam)(citations omitted). Section 2255 is ineffective or inadequate where a petitioner is

in the unusual position of having “no prior opportunity to challenge his conviction for a

crime that an intervening change in substantive law could negate with retroactive

application.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002)(citation

omitted). However, Section 2255 is not inadequate or ineffective merely because a prior

motion has been unsuccessful or the petitioner is unable to meet the stringent gatekeeping

requirements for filing a second or successive § 2255 motion. See Okereke, 307 F.3d at

120 (citation omitted).

              Kent’s claims fall within the purview of § 2255 and Kent has not

demonstrated that § 2255 is inadequate or ineffective. Kent’s claims could have been

presented in a § 2255 motion, and raising them in a § 2241 petition amounts to nothing

more than an attempt to circumvent the gatekeeping provisions of § 2255. Therefore, we

will affirm. Kent’s motions for bail are denied.




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