                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-30-2002

Carter v. White
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-1855




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"Carter v. White" (2002). 2002 Decisions. Paper 682.
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                                                                    NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                                          No. 02-1855


                                       KEVIN CARTER,
                                                            Appellant
                                                v.

                            KIM M. WHITE, SUPERINTENDENT




                         On Appeal from the United States District Court
                                  for the District of New Jersey
                                     (D.C. No. 02-cv-00141)
                            District Judge: Hon. Jerome B. Simandle


                           Submitted Under Third Circuit LAR 34.1(a)
                                      October 28, 2002

                        Before: SLOVITER, FUENTES, Circuit Judges
                               and DIAMOND,* District Judge

                                    (Filed October 30, 2002)




                                  OPINION OF THE COURT

___________________

*     Hon. Gustave Diamond, United States District Court for the Western District of
      Pennsylvania, sitting by designation.




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SLOVITER, Circuit Judge.

          Appellant Kevin Carter appeals to this court alleging that the District Court

erroneously dismissed his 28 U.S.C. § 2241 petition for habeas corpus relief. Because we

conclude that the District Court did not err in dismissing Carter’s § 2241 petition, we will

affirm.

                                                   I.

          Inasmuch as the parties are familiar with the factual and procedural background of

this case, we refer only to those facts as are pertinent to the issue under consideration.

          On May 26, 1993, Carter pled guilty to one count of conspiracy to possess,

distribute, and attempt to distribute cocaine in violation of 21 U.S.C. § 846 in the District

Court of the Western District of Missouri. Carter was sentenced to 235 months in prison.

The Court of Appeals for the Eighth Circuit affirmed his sentence. Carter thereafter filed a

petition pursuant to 28 U.S.C. § 2255, which the sentencing court in the Western District

of Missouri denied. The Court of Appeals for the Eighth Circuit denied Carter’s petition

seeking a certificate of appealability.

          Carter is currently serving his prison sentence at the Federal Correctional Institute

in Fairton, New Jersey and filed a petition for habeas corpus relief under 28 U.S.C. § 2241

with the District Court for the District of New Jersey. The District Court denied

Carter’s petition for lack of jurisdiction; Carter appeals to this court.




                                                   II.

                                                         2
        We have jurisdiction to hear this appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a).

We exercise plenary review over the District Court’s legal conclusions and apply a clearly

erroneous standard to its factual findings. See Cradle v. United States, 290 F.3d 536, 538

(3d Cir. 2002) (per curiam).

        The District Court found that Carter’s § 2241 petition was actually a successive        §

2255 petition because it challenged his underlying conviction and sentence rather than the

execution of that sentence. Section 2255 requires persons who seek to vacate, set aside or

correct their sentences to petition the “court which imposed the sentence” in the first

instance. 28 U.S.C. § 2255. Accordingly, the District Court held that Carter should have

filed a successive § 2255 petition with the Court of Appeals for the Eighth Circuit, seeking

to obtain certification from it permitting a successive § 2255 petition to be filed with the

sentencing court in the Western District of Missouri.

        The District Court also determined that Carter, who had filed his motion under 28

U.S.C. § 2241 rather than § 2255, failed to present exceptional circumstances that would

allow him to benefit from our decision in In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997). In

that case we held that courts may hear motions pursuant to § 2241 in limited situations

where § 2255 proved “inadequate or ineffective.” Id. at 251. Furthermore, the District

Court noted that Carter’s ineffective assistance of counsel claim should have been included

in his first § 2255 petition, and in any event was not cognizable under § 2241.

        On appeal, Carter concedes that he can no longer file a § 2255 petition but argues

that he can obtain relief under § 2241 by fitting within In re Dorsainvil’s exception because

                                                      3
the Supreme Court issued its decision in Apprendi v. New Jersey, 530 U.S. 466 (2000),

after Carter was sentenced and therefore he could not have previously raised his Apprendi

issues. In In re Dorsainvil, we found the petitioner to be in the “unusual position” of a

prisoner with no prior opportunity to challenge his conviction for a crime that an

intervening Supreme Court decision deemed to be not criminal. 119 F.3d at 251. We held

Dorsainvil could seek habeas corpus relief pursuant to § 2241 in a district court within the

district of his confinement, because in that rare case § 2255 proved “inadequate or

ineffective.” Id. at 252.

        Carter’s argument based on In re Dorsainvil, however, is foreclosed by our recent

decision in Okereke v. United States of America, No. 01-1007 (3d Cir. Sept. 12, 2002),

where we held that under In re Dorsainvil, § 2255 is not inadequate or ineffective for

individuals to raise Apprendi claims. Accordingly, Carter was not entitled to file his

petition under § 2241.

        On a final note, Carter presents us with the merits of his ineffective assistance of

counsel claim without addressing the District Court’s discussion as to why that claim was

procedurally barred under § 2255 and not cognizable under § 2241. As the District Court

correctly analyzed this issue, we will not consider Carter’s ineffective assistance of

counsel claim.




                                                  III.

        The District Court construed Carter’s § 2241 petition as one pursuant to § 2255 and

                                                     4
properly dismissed his petition for habeas corpus relief. For the reasons set forth, we will

affirm.




                                                 /s/ Dolores K. Sloviter
                                                 Circuit Judge




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