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


8-19-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2656




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Recommended Citation
"Otto v. Williamson" (2005). 2005 Decisions. Paper 672.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/672


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HPS-130 (July 2005)                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                   NO. 05-2656
                      ____________________________________

                                      BUCKLEY OTTO,
                                                  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-00948)
                    District Judge: Honorable James F. McClure, Jr.
                    _______________________________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   July 29, 2005
     Before: CHIEF JUDGE SCIRICA, WEIS AND GARTH, CIRCUIT JUDGES
                              (Filed August 19, 2005)
                            _______________________

                                       OPINION
                               _______________________

PER CURIAM.

              Buckley Otto, a federal prisoner, appeals pro se the order of the United

States District Court for the Middle District of Pennsylvania denying his habeas petition

filed pursuant to 28 U.S.C. § 2241. For the reasons that follow, we will summarily affirm

the judgment of the District Court.



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              In 1983, following a jury trial, Otto was convicted in the United States

District Court for the District of Connecticut of bank robbery, armed bank robbery,

kidnaping during a bank robbery, and conspiracy. Otto was sentenced to a term of twenty

years imprisonment. Otto did not file an appeal from his conviction and sentence. Since

1985, Otto has filed three unsuccessful motions pursuant to 28 U.S.C. § 2255 in the

District Court for the District of Connecticut. Otto has also filed an unsuccessful

application with the United States Court of Appeals for the Second Circuit for permission

to file a second or successive § 2255 motion, arguing that erroneous jury instructions

violated his right to a trial by jury, and that he is actually innocent of the crimes for which

he was convicted.

              Otto, who is incarcerated at FCI-Allenwood in White Deer, Pennsylvania,

filed the underlying § 2241 petition in the District Court for the Middle District of

Pennsylvania on May 5, 2005. In his § 2241 petition, Otto alleged: (1) that the trial

court’s improper jury instructions violated his right to a trial by jury; and (2) insufficient

evidence and actual innocence of the crimes for which he was convicted. On May 16,

2005, the District Court dismissed Otto’s § 2241 petition, concluding that Otto had not

shown that § 2255 is inadequate or ineffective such that he should be allowed to proceed

under § 2241. This timely appeal followed.

              A § 2255 motion is the presumptive means by which a federal prisoner can

challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343



                                               2
(1974). 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 28 U.S.C.

§ 2255; In re Dorsainvil, 119 F.3d 245, 249-51 (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 of his claims.” Cradle v. United States ex rel. Miner, 290 F.3d 536, 538

(3d Cir. 2002). 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 v. United

States, 307 F.3d 117, 120-21 (3d Cir. 2002); see also Cradle, 290 F.3d at 539.

              There is no doubt that Otto’s claims fall within the purview of § 2255, and,

as the District Court concluded, Otto has not demonstrated that § 2255 is “inadequate or

ineffective.” Otto’s attempt to circumvent the gatekeeping provisions of § 2255 is

unavailing, and amounts to little more than an end run around Second Circuit Court of

Appeals’ decision denying his application for authorization to file a second § 2255

motion.

              Because this appeal presents “no substantial question,” 3d Cir. LAR 27.4

and I.O.P. 10.6, we will summarily affirm the District Court’s May 16, 2005, order.

Otto’s motion for appointment of counsel is denied.




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