                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-24-2005

Grecco v. Williamson
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3320




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Recommended Citation
"Grecco v. Williamson" (2005). 2005 Decisions. Paper 356.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/356


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HPS-158       (September 2005)                          NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                      No. 05-3320

                                   ALAN GRECCO,
                                         Appellant

                                           vs.

                          TROY WILLIAMSON, Warden
                     _____________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                             (D.C. Civ. No. 05-cv-00852)
                        District Judge: Honorable Yvette Kane
                     _____________________________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                September 23, 2005
         Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges
                              (Filed: October 24, 2005)

                        _________________________________

                                       OPINION

                        _________________________________

PER CURIAM.

             Alan Grecco, a federal prisoner, appeals the order of the District Court for

the Middle District of Pennsylvania denying habeas relief under 28 U.S.C. § 2241.

             Grecco filed a § 2241 petition in April 2005, attacking the validity of his



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1991 conviction in the District of New Jersey. He claims that United States v. Booker,

125 S. Ct. 738 (2005), applies retroactively to cases like his on collateral review, that §

2255 relief is an inadequate or ineffective remedy to challenge his sentence, and that

under Booker he is actually innocent. The District Court denied the § 2241 petition,

holding that § 2255 was not inadequate or ineffective merely because Grecco was

unsuccessful with regard to an earlier § 2255 motion he filed in 1997. The District Court

determined that because Grecco had not yet presented his claims in a § 2255 motion,

seeking § 2241 relief on these claims in the district of confinement was inappropriate.

The District Court found that because Grecco had filed a § 2255 motion in 1997, his only

avenue for pursuing the Booker claim was through an application to this Court for leave

to file a second § 2255 motion. Grecco timely appealed.

              We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review is de novo.

See United States v. Cleary, 46 F.3d 307, 309-10 (3d Cir. 1995).

              A collateral attack upon a federal conviction and sentence raised outside the

sentencing court via 28 U.S.C. § 2241 must be rejected “if it appears that the applicant

has failed to apply for relief, by [§ 2255] motion, to the court which sentenced him, or

such court has denied him relief, unless it also appears that the remedy by [§ 2255]

motion is inadequate or ineffective to test the legality of his detention.” See 28 U.S.C. §

2255.

              As the District Court explained, Grecco’s claims challenging the judgment



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and sentence are properly raised in a motion to vacate sentence under 28 U.S.C. § 2255,

not a petition for writ of habeas corpus under § 2241. Moreover, § 2255 is not

“inadequate or ineffective” merely because the sentencing court has previously denied

relief or because recent amendments to § 2255 have made it more difficult to pursue

successive motions. Because Grecco is challenging his judgment and commitment, and

because the current petition would be considered a second or successive such challenge

under § 2255, he must apply for permission to file another § 2255 motion with this Court.

             For these reasons, we conclude that the District Court correctly denied

Grecco’s § 2241 petition. Accordingly, because this appeal presents “no substantial

question,” we will grant the appellees motion for summary affirmance and affirm the

order of the District Court. See 3d Cir. LAR 27.4 and I.O.P. 10.6. Grecco’s motion for

summary reversal is denied.




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