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


10-17-2005

Green v. Apker
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2456




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation
"Green v. Apker" (2005). 2005 Decisions. Paper 392.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/392


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 05-2456
                                   ________________

                                     DAVE GREEN,

                                            Appellant

                                             v.

                                 CRAIG APKER,
                             Warden, LSCI-Allenwood
                    _______________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                             (D.C. Civ. No. 05-CV-00780)
                     District Judge: Honorable James F. McClure
                    _______________________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   October 14, 2005

              Before: SLOVITER, BARRY AND FISHER, Circuit Judges.

                               (Filed: October 17, 2005)
                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Dave Green 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
without prejudice, and from an order denying his motion for reconsideration. We will

affirm.

          Green is a native and citizen of Jamaica who entered the United States in October

of 2002 as a nonimmigrant visitor. Green was arrested in March, 2003, extradited to

Florida and placed in a federal correctional facility. He pleaded guilty to a charge of

conspiracy to import a Schedule II controlled substance and was sentenced to 78 months

in prison. He is currently serving his sentence at LSCI-Allenwood. According to Green,

the Bureau of Immigration and Customs Enforcement (BICE) lodged a detainer against

him on October 2, 2003. (Pet. at 3.)

          Green filed a petition for a writ of habeas corpus on April 18, 2005. In his

petition, Green seeks to challenge his pretrial detention and his conviction because he was

not informed of his right to consular access under the Vienna Convention on Consular

Relations. He also alleges that the BICE detainer lodged against him is invalid because it

is based on an unlawful conviction. He further asserts that the BICE detainer precludes

him from participating in various rehabilitative and early-release programs offered by the

Bureau of Prisons in violation of his rights under the Equal Protection Clause. The

District Court also generously construed Green’s petition as raising a claim under INS v.

St. Cyr, 533 U.S. 289 (2001).1 Green requests immediate release from custody or an




          1
        To the extent Green raised a claim pursuant to St. Cyr, we agree for the reasons
stated by the District Court that Green is not eligible for relief on such a claim.

                                                2
order remanding and/or vacating the indictment and conviction against him, as well as an

order enjoining any further detention.

       The District Court summarily dismissed Green’s petition on the ground that he

cannot proceed under 28 U.S.C. § 2241. The District Court advised Green that his

available remedy, if any, was a motion to vacate his sentence filed in the sentencing court

under 28 U.S.C. § 2255.2 Green filed a motion for reconsideration, arguing that he could

proceed under § 2241 because § 2255 was inadequate and that failing to allow him to

proceed would result in a suspension of the writ. The District Court denied the motion

for reconsideration and Green appeals.

       To the extent that Green seeks to challenge his underlying conviction, we agree

with the District Court that Green must proceed, if at all, under § 2255. 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, 343-44 (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).

       We have previously explained that “[a] § 2255 motion is inadequate or ineffective

only where the petitioner demonstrates that some limitation of scope or procedure would




       2
        The District Court did not mention Green’s challenge to the BICE detainer to the
extent he claims it violates his right to Equal Protection.

                                              3
prevent a § 2255 proceeding from affording him a full hearing and adjudication of his

wrongful detention claim.” Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d

Cir. 2002). Section 2255 is not inadequate or ineffective merely because the petitioner is

unable to meet certain procedural requirements, such as the one-year period of limitation

or the stringent gatekeeping requirements for filing a second or successive § 2255 motion.

Id. at 539. Rather, § 2255 is inadequate or ineffective, for example, in the “rare situation”

where an intervening change in law makes the crime for which the petitioner was

convicted “non-criminal.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002).

       Green’s situation is not the rare one rendering § 2255 inadequate or ineffective.

His challenge to his conviction implicates no intervening change of law or other event

such that the crimes to which he pleaded guilty are “non-criminal.” Accordingly, the

District Court properly ruled that Green may not challenge his underlying conviction

under § 2241.3 See Darby v. Hawk-Sawyer, 405 F.3d 942, 945 (11th Cir. 2005)

(petitioner may not bring claim under the Vienna Convention under § 2241, even where

he has filed a previously unsuccessful § 2255 motion).

       To the extent Green seeks to challenge the BICE detainer lodged against him, we

conclude that the District Court lacked jurisdiction to consider such a challenge. In order


       3
        We express no opinion on the merits of Green’s claim based on the Vienna
Convention. We note only that it is unclear whether Green has any privately enforceable
right or cognizable claim at all under the consular notification provisions of the Vienna
Convention. See Medellin v. Dretke, 125 S. Ct. 2088, 2090-91 (2005) (dismissing writ of
certiorari as improvidently granted).

                                             4
to invoke habeas corpus jurisdiction under § 2241, Green must demonstrate that he is “in

custody” pursuant to the detainer. See 28 U.S.C. § 2241. According to most courts

which have considered the custody question, a prisoner who is serving a criminal

sentence is not in BICE custody simply because the BICE has lodged a detainer against

him with the prison where he is incarcerated. See Garcia-Echaverria v. United States,

376 F.3d 507, 510-11 (6th Cir. 2004); Zolicoffer v. United States Department of Justice,

315 F.3d 538, 541 (5th Cir. 2003). Even if Green were in BICE custody, he challenges

the detainer on the sole ground that the conviction on which it is based is unlawful.

Green has not established that his conviction is unlawful and cannot do so in the context

of § 2241, as described previously.4

       Finally, we consider Green’s claim that his Equal Protection rights have been

violated due to the BICE detainer lodged against him. Green asserts that the Bureau of

Prisons does not allow him to participate in various rehabilitative and early-release

programs based solely on the BICE detainer, and that only aliens are subject to a BICE

detainer. Because this claim challenges the execution of Green’s sentence, rather than the

validity of it, he properly raised it in a § 2241 petition. See Coady v. Vaughn, 251 F.3d

480, 485 (3d Cir. 1999). Nonetheless, this claim lacks merit. Prisoners who are ineligible




       4
       Additionally, to the extent that Green wishes to challenge his pretrial detention
under § 2241, he cannot do so at this time. Once Green pleaded guilty and was
sentenced, his pretrial custody terminated for the purpose of habeas corpus jurisdiction.

                                             5
to participate in these programs include non-aliens as well as aliens. See McLean v.

Crabtree, 173 F.3d 1176, 1185-86 (9th Cir. 1999).

       For the foregoing reasons, we will affirm the District Court’s judgment.5




       5
        We further hold that the District Court did not abuse its discretion in denying
Green’s motion for reconsideration, which simply attempted to reargue the claims he
raised initially.

                                             6
