                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-21-2007

Thomas v. Miner
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1854




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"Thomas v. Miner" (2007). 2007 Decisions. Paper 560.
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CLD-328                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO. 07-1854
                                  ________________

                             FRANKIE DEAN THOMAS,

                                           Appellant

                                             v.

          JONATHAN C. MINER, Warden; UNITED STATES MARSHALS
                 ____________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                            (M.D. Pa. Civ. No. 07-cv-00422)
                      District Judge: Honorable Sylvia H. Rambo
                    _______________________________________


Submitted For a Decision on the Issuance of a Certificate of Appealability or for Possible
           Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                     July 26, 2007

           Before: RENDELL, SMITH AND JORDAN, CIRCUIT JUDGES

                                (Filed: August 21, 2007)


                              _______________________

                                      OPINION
                              _______________________

PER CURIAM

      Frankie Thomas, a federal prisoner, appeals pro se from the District Court’s order
denying his petition for a writ of habeas corpus, which he had purported to file under 28

U.S.C. § 2241 instead of § 2255. The District Court’s order denying relief was based in

part on the merits of what it construed as a § 2241 claim. Because we conclude that

Thomas’s petition must be construed as an unauthorized second or successive § 2255

petition, we will summarily vacate the District Court’s order and direct the District Court

to enter an order dismissing Thomas’s petition for lack of jurisdiction.1

       Thomas began serving a 322-month sentence for bank robbery and a related crime

in 1997. Since then, he has filed at least six § 2255 motions, at least two putative § 2241

petitions, and a series of applications with this Court under § 2244 seeking an order

authorizing the District Court to consider additional § 2255 motions. Each of these

filings has been denied.

       Thomas purported to file the petition at issue here, which again challenges the

legality of his conviction and sentence, under § 2241. Federal prisoners, however,

generally may bring such challenges only under § 2255, which means that they must

satisfy the gate-keeping requirements of that section and § 2244 before filing a second or

successive § 2255 motion. See Okereke v. United States, 307 F.3d 117, 120 (3d Cir.

2002). There is a limited exception allowing federal prisoners to proceed under § 2241 if

a motion under § 2255 would be “inadequate or ineffective” to protect the prisoner’s


  1
   A certificate of appealability is not required to appeal the denial of a § 2241 petition,
which is how the District Court appears to have construed Thomas’s petition. See United
States v. Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000).

                                             2
rights. Cradle v. United States, 290 F.3d 536, 538-39 (3d Cir. 2002); In re Dorsainvil,

119 F.3d 245, 251 (3d Cir. 1997). In Dorsainvil, for example, we allowed a prisoner to

proceed under § 2241 when, after his first § 2255 petition had been denied, the Supreme

Court ruled that conduct of the kind in which he had been found to engage was not

criminalized by the statute under which he had been convicted. See id. at 252. In

addition, federal prisoners may proceed under § 2241 when their challenge is directed to

the execution, as opposed to the validity, of their sentence. See, e.g., United States v.

Eakman, 378 F.3d 294, 297 (3d Cir. 2004).

       None of Thomas’s claims here qualifies under either approach. Thomas claims

that his conviction is void because, in 1997, the return on his judgment of conviction was

signed by a Lieutenant instead of a United States Marshal. He also claims that the

District Court’s imposition of consecutive terms of imprisonment was unlawful, and

appears to argue that his indictment and conviction are void because the government did

not offer evidence that he was an “enemy combatant,” which he contends is a prerequisite

to the application of the Antiterrorism and Effective Death Penalty Act of 1996.

       These claims neither fit within the narrow Dorsainvil exception nor challenge the

execution of Thomas’s sentence. Thus, the District Court should have construed

Thomas’s petition as an unauthorized second or successive § 2255 motion over which it

lacked jurisdiction. See Okereke, 307 F.3d at 120-21. The District Court did note that

one of Thomas’s claims could be brought only under § 2255, but denied his others on the



                                              3
merits. Accordingly, we will vacate the District Court’s order and remand with an

instruction to enter an order dismissing his petition for lack of jurisdiction.




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