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


8-18-2005

Rice v. Dodrill
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2603




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"Rice v. Dodrill" (2005). 2005 Decisions. Paper 684.
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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 04-2603
                                   ________________

                                    WALLACE RICE

                                            v.

                        SCOTT DODRILL, U.S.P. Lewisburg,
                              United States of America
                    _______________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                              (D.C. Civ. No. 02-cv-01817)
                        District Judge: Honorable Yvette Kane
                    _______________________________________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  MARCH 21, 2005

               Before: ROTH, MCKEE AND ALDISERT, Circuit Judges.

                               (Filed: August 18, 2005 )
                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Wallace Rice appeals from the District Court’s order dismissing his petition for a

writ of habeas corpus. For the following reasons, we will affirm.

      Rice is a federal prisoner incarcerated at the United States Penitentiary in

Lewisburg, Pennsylvania. In 1983, the United States District Court for the Southern
District of New York sentenced Rice to life in prison for a Continuing Criminal

Enterprise (CCE), possession with intent to deliver heroin, conspiracy, and RICO. The

United States Court of Appeals for the Second Circuit affirmed. United States v.

Thomas, 757 F.2d 1359 (2d Cir. 1985), cert. denied, Rice v. United States, 479 U.S. 818

(1986). In May 2000, Rice filed a motion to vacate his sentence under 28 U.S.C. § 2255,

which the sentencing court denied. Rice v. United States, 118 F. Supp. 2d 451 (S.D.N.Y.

2000).1

       In October 2002, Rice filed the current habeas corpus petition under 28 U.S.C.

§ 2241 in the Middle District of Pennsylvania. In his petition, Rice attempts to challenge

his conviction and sentence under Ring v. Arizona, 536 U.S. 584 (2002), and Apprendi v.

New Jersey, 530 U.S. 466 (2000).2 He also asserts that he is actually innocent of the

sentence of life in prison imposed for CCE. The District Court concluded that Rice

cannot proceed under § 2241 because the remedy available to him under § 2255 is not

inadequate or ineffective. Accordingly, the District Court dismissed Rice’s petition

without prejudice to his seeking authorization to file a second or successive § 2255

motion. Rice appeals.




   1
   Rice also states that his request for authorization to file a second or successive § 2255
motion has been denied. (Appellant’s Br. at 3.)
   2
   We have not overlooked Rice’s citation to Richardson v. United States, 526 U.S. 813
(1999). We decline to consider any claims based on Richardson because such claims
were raised and rejected in Rice’s § 2255 motion. See Rice, 118 F. Supp. 2d at 452-53.

                                             2
       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

(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 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.

       Specifically, we considered in Okereke v. United States, 307 F.3d 117 (3d Cir.

2002), whether § 2255 is inadequate or ineffective for a federal prisoner to challenge his

sentence under Apprendi. See Okereke, 307 F.3d at 120-21. We explained that

Dorsainvil was the “rare situation” in which an intervening change in law made the crime

for which Dorsainvil had been convicted “non-criminal.” Id. at 120. Because Apprendi

dealt with sentencing and did not render a conspiracy to import heroin “not criminal,” we

concluded that § 2255 is not inadequate or ineffective to raise an Apprendi argument. Id.

at 120-21. Thus, Okereke precludes Rice from raising an Apprendi challenge in a § 2241



                                              3
proceeding. Rice is also precluded from presenting a Ring challenge in a § 2241

proceeding because that decision is based squarely on the rule of Apprendi. See Ring,

536 U.S. at 609.3

       Rice’s assertion of actual innocence does not alter our conclusion. His argument is

one of legal innocence, not factual innocence, based on the erroneous premise that

Apprendi and cases following it apply retroactively to cases on collateral review. In

short, his actual innocence argument is unavailing in this proceeding.4

       For these reasons, we agree with the District Court that Rice may not proceed

under § 2241. Accordingly, we will affirm the District Court’s order dismissing his

habeas corpus petition.




   3
    Even if Rice were permitted to proceed under § 2241, he cannot benefit from the rule
of Apprendi because it does not apply retroactively to cases on collateral review. See
United States v. Swinton, 333 F.3d 481, 491 (3d Cir. 2003). Moreover, Rice could have
presented an Apprendi challenge in his § 2255 motion filed in May 2000 and denied on
October 30, 2000. The Supreme Court issued Apprendi on June 26, 2000, while Rice’s
§ 2255 proceedings were pending.
   4
     The Supreme Court has issued two landmark decisions applying the rule of Apprendi
while Rice’s appeal has been pending. The first is Blakely v. Washington, 124 S. Ct.
2531 (2004), which Rice cites in his briefs. The other is United States v. Booker, 125 S.
Ct. 738 (2005), decided January 12, 2005, which applies Blakely and reaffirms Apprendi
in the context of the Federal Sentencing Guidelines. While we have yet to explicate the
applicability, if any, of Booker and Blakely in postconviction proceedings, our decision in
Okereke remains intact. Because nothing in Booker or Blakely undermines our
conclusion or reasoning in Okereke, we are convinced that the remedy provided by
§ 2255 is not inadequate or ineffective for pursuing such claims.
                                         4
