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


12-21-2006

Gordon v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3383




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HLD-34      (December 2006)                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 06-3383
                                   ________________

                               MICHAEL LEE GORDON,
                                              Appellant
                                        vs.

                           UNITED STATES OF AMERICA
                   ____________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                            (M.D. PA. Civ. No. 06-cv-01015)
                      District Judge: Honorable William J. Nealon
                    _______________________________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                December 8, 2006
         Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges.

                                Filed December 21, 2006
                               _______________________

                                      OPINION
                               _______________________

PER CURIAM.

              Michael Lee Gordon, a federal inmate incarcerated at USP-Allenwood in

Pennsylvania, appeals pro se from an order of the United States District Court for the

Middle District of Pennsylvania dismissing his habeas petition filed pursuant to 28 U.S.C.

§ 2241 for lack of jurisdiction. We will affirm.

                                             1
              In March 1999, a jury sitting in the United States District Court for the

Southern District of Ohio found Gordon guilty of seven counts of weapons violations and

seven violations of the Hobbs Act, 18 U.S.C. § 1951. Gordon was sentenced to 137

years’ imprisonment. The Court of Appeals for the Sixth Circuit affirmed. Gordon

thereafter filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C.

§ 2255, which was denied by the United States District Court for the Southern District of

Ohio on September 30, 2002. In 2003, Gordon filed a second § 2255 motion, which was

transferred to the Sixth Circuit as a successive motion and was denied in June 2005.

              On May 18, 2006, Gordon filed the underlying § 2241 petition in the

Middle District of Pennsylvania asserting that § 2255 is an inadequate or ineffective

means of contesting his conviction and sentence because the Government never

responded to the issues raised in his original § 2255 motion. See § 2241 petition at 5.

Gordon’s substantive claims allege ineffective assistance of counsel. Id. at 14.

              Gordon’s petition was referred to a Magistrate Judge who issued a Report

recommending that it be dismissed for lack of jurisdiction because the claim presented

was clearly within the purview of § 2255. The District Court adopted the Magistrate

Judge’s Report and Recommendation and dismissed the § 2241 petition, ruling that

Gordon’s claim was essentially a sentencing claim and that he failed to show how a

§ 2255 motion was inadequate or ineffective to test the legality of his detention. This

timely appeal followed.



                                              2
              We have jurisdiction pursuant to 28 U.S.C. § 1291. For essentially the

same reasons set forth by the District Court, we will summarily affirm the order

dismissing Gordon’s petition.

              As the District Court explained, a § 2255 motion is the presumptive means

for a federal prisoner to challenge the validity of a conviction or sentence, unless such a

motion would be “inadequate or ineffective to test the legality of his detention.” Okereke

v. United States, 307 F.3d 117, 120 (3d Cir. 2002); 28 U.S.C. § 2255 ¶ 5. A § 2255

motion is inadequate or ineffective only when “some limitation of scope or procedure”

prevents a movant from receiving an adjudication of his 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 a prior motion has been unsuccessful or a petitioner is unable

to meet the stringent gatekeeping requirements for filing a second or successive § 2255

motion under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

Okereke, 307 F.3d at 120-21. See also Cradle, 290 F.3d at 539.

              The “safety valve” provided under § 2255 is extremely narrow and has been

held to apply in unusual situations, such as those in which a prisoner has had no prior

opportunity to challenge his conviction for acts later deemed to be non-criminal because

of an intervening change in the law. See Okereke, 307 F.3d at 120 (citing In re

Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997)). Such is not the case here. Gordon makes

no allegation that he is actually innocent of the crimes for which he was convicted. The



                                              3
exception identified in In re Dorsainvil is simply inapplicable. Gordon’s claims fall

within the purview of § 2255 because they challenge the validity of his conviction. We

agree with the District Court that Gordon has not demonstrated that § 2255 is an

“inadequate or ineffective” remedy under the circumstances presented here. See Cradle,

290 F.3d at 538 (“It is the inefficacy of the remedy, not the personal inability to use it,

that is determinative”). Gordon’s recourse at this point is to seek permission from the

Sixth Circuit Court of Appeals to file a second or successive § 2255 motion in the

sentencing court.

              Because the § 2241 petition was properly dismissed and no substantial

question is presented by this appeal, we will grant appellee’s motion for summary

affirmance and affirm the District Court’s order entered on July 5, 2006. See Third

Circuit LAR 27.4 and I.O.P. 10.6.




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