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


12-6-2005

Widener v. Smith
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4192




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"Widener v. Smith" (2005). 2005 Decisions. Paper 152.
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HPS-6                                                           NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                   NO. 05-4192
                      ____________________________________

                                FREDDIE D. WIDENER,
                                                Appellant
                                         v.

                              WARDEN JOSEPH SMITH
                      _____________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                              (D.C. Civ. No. 05-cv-01607)
                    District Judge: Honorable James F. McClure, Jr.
                    _______________________________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                November 4, 2005

           Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges

                                (Filed December 6, 2005)
                               _______________________

                                        OPINION

PER CURIAM.

              Freddie Widener, a federal prisoner, appeals pro se the 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 the reasons that follow, we will

summarily affirm the judgment of the District Court.

                                             1
              Widener was convicted in 1990 in the United States District Court for the

District of Maryland of conspiracy, robbery by use of force, and robbery by use of a

firearm. United States v. Widener, 956 F.2d 1163 (4th Cir. 1992) (per curiam). Widener

was sentenced to 262 months imprisonment. The United States Court of Appeals for the

Fourth Circuit affirmed Widener’s conviction and sentence on direct appeal, id., and the

United States Supreme Court denied Widener’s petition for writ of certiorari. Widener

then filed a motion pursuant to 28 U.S.C. § 2255 in the District Court for the District of

Maryland which was dismissed as untimely pursuant to 28 U.S.C. § 2244(d)(1). The

Court of Appeals for the Fourth Circuit declined to issue Widener a certificate of

appealability. United States v. Widener, 173 F.3d 853 (4th Cir. 1999) (per curiam).

              Widener, who is incarcerated at USP-Lewisburg in Lewisburg,

Pennsylvania, submitted the underlying § 2241 petition in the District Court for the

Middle District of Pennsylvania in July 2005. In his § 2241 petition, Widener attempts to

challenge his conviction and sentence under Apprendi v. New Jersey, 530 U.S. 466

(2000), Ring v. Arizona, 536 U.S. 584 (2002), Blakely v. Washington, 542 U.S. 296

(2004), and United States v. Booker, 125 S. Ct. 738 (2005). Widener also alleges in his §

2241 petition a claim of actual innocence. On August 30, 2005, the District Court

dismissed Widener’s § 2241 petition, concluding that Widener had not shown that § 2255

is inadequate or ineffective such that he should be allowed to proceed under § 2241. This

timely appeal followed.



                                             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 a prior

motion has been unsuccessful or the petitioner is unable to meet the stringent gatekeeping

requirements for filing a second or successive § 2255 motion. Okereke v. United States,

307 F.3d 117, 120-21; see also Cradle, 290 F.3d at 539. Rather, § 2255 is inadequate or

ineffective, for example, in the “rare situation” where an intervening change in law makes

the crime for which the petitioner was convicted “non-criminal.” Okereke, 307 F.3d at

120.

              We agree with the District Court that Widener’s situation is not the rare one

rendering § 2255 inadequate or ineffective. Specifically, we have held that § 2255 is not

inadequate or ineffective for a federal prisoner seeking to raise an Apprendi claim in a

§ 2241 proceeding. Okereke v. United States, 307 F.3d 117, 120-21. Like Apprendi, the

Supreme Court’s holdings in Ring, Blakely, and Booker did not change the substantive



                                              3
law as to the elements of the offenses for which Widener was convicted. Although

Widener may face substantive and procedural hurdles to presenting these claims in a

§ 2255 motion, that alone does not render a § 2255 motion an inadequate or ineffective

remedy.

              Finally, Widener’s assertion of actual innocence does not alter our

conclusion that the District Court properly dismissed his § 2241 petition. Widener’s

argument is one of legal innocence, not factual innocence, based on the erroneous

premise that Apprendi, Ring, Blakely, and Booker apply retroactively to cases on

collateral review. See Schriro v. Summerlin, 542 U.S. 348 (2004) (holding that Ring

does not apply retroactively to cases on collateral review); Lloyd v. United States, 407

F.3d 608, 613-15 (3d Cir. 2005) (holding that Booker, which applied the Blakely rule to

the federal sentencing guidelines, is not retroactively applicable to cases on collateral

review); United States v. Swinton, 333 F.3d 481, 491 (3d Cir. 2003) (holding that

Apprendi is not retroactively applicable to cases on collateral review). In short,

Widener’s actual innocence argument is unavailing in this proceeding.

              Because this appeal presents “no substantial question,” 3d Cir. LAR 27.4

and I.O.P. 10.6, we will summarily affirm the District Court’s August 30, 2005, order.




                                              4
