                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-19-2006

Stevens v. Lindsay
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2547




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Recommended Citation
"Stevens v. Lindsay" (2006). 2006 Decisions. Paper 311.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/311


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APS-350                                                  NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                          ________________

                                NO. 06-2547
                             ________________

                          LUVOYDA A. STEVENS,

                                       Appellant

                                       v.

                       CAMERON LINDSAY, Warden
                  ____________________________________

                On Appeal From the United States District Court
                    For the Middle District of Pennsylvania
                          (D.C. Civ. No. 06-CV-00831)
                 District Judge: Honorable A. Richard Caputo
                 ____________________________________

                   Submitted For Possible Summary Action
                 Under Third Circuit LAR 27.4 and I.O.P. 10.6
                             September 28, 2006

          BEFORE: SLOVITER, McKEE and FISHER, CIRCUIT JUDGES

                          (Filed: October 19, 2006)

                         _______________________

                                OPINION
                         _______________________
PER CURIAM

       Luvoyda Stevens appeals from an order of the United States District Court for the

Middle District of Pennsylvania (“Middle District”), which dismissed his habeas petition

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

       Stevens was convicted of two counts in a twenty-nine count indictment in the

United States District Court for the District of New Jersey (“trial court”) following a

guilty plea, and was sentenced to 210 months on Count One and 120 months on Count

Twenty-Eight to run concurrently. Stevens did not file a direct appeal. He filed a motion

pursuant to 28 U.S.C. § 2255 in the trial court in February 2005, which was dismissed as

time-barred.

       In April 2006, Stevens filed the instant § 2241 petition in the Middle District,

challenging his judgment of conviction and sentence, because he believed Count One was

dismissed at his sentencing. He argued that § 2255 is inadequate and ineffective, because

he did not learn that Count One was dismissed until he received his sentencing transcript.

The District Court dismissed the petition, finding that whether Stevens had attempted to

file a second or successive § 2255 motion and been denied, or whether he was assuming

he would be unable to file a second or successive motion, § 2255 was not inadequate or

ineffective simply because Stevens could not meet the statute’s gate-keeping

requirements.

       We agree with the District Court that Stevens cannot proceed under § 2241 but

must instead use § 2255. Section 2241 may be substituted for § 2255 only in exceptional

                                             2
circumstances such as those faced by the petitioner in In re Dorsainvil, 119 F.3d 245 (3d

Cir. 1997), who “was in the ‘unusual position’ of a prisoner with 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). Stevens, by contrast, does not maintain that the actions for which he was

convicted have since been decriminalized. Moreover, he could have raised his claims on

direct appeal or in a timely § 2255 motion. Because a § 2255 motion must be filed in the

sentencing court, and because Stevens filed his § 2241 petition in a court that did not

sentence him, the District Court correctly dismissed his petition without prejudice for lack

of jurisdiction. After considering Appellee’s motion for summary affirmance and

Stevens’ opposition thereto, we find that the appeal does not present a substantial issue

and we grant the appellee’s motion for summary affirmance.1




       1
        Stevens’ motion for appointment of counsel is denied as moot.

                                             3
