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


4-28-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4676




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BPS-169                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-4676


                           UNITED STATES OF AMERICA
                                      v.
                               FRANKIE THOMAS,

                                            Appellant


                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                           (M.D. Pa. Crim. No. 96-cr-00297)
                      District Judge: Honorable Sylvia H. Rambo


           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                   March 23, 2006

              Before: RENDELL, AMBRO and BECKER, Circuit Judges

                                 (Filed: April 28, 2006)


                                        OPINION



PER CURIAM

      Frankie Thomas, a federal prisoner, appeals pro se from an order of the District

Court for the Middle District of Pennsylvania dismissing his habeas corpus petition. In

1997, a jury convicted Thomas of armed bank robbery and carrying a firearm in relation

to a crime of violence, and Thomas was sentenced to a total of 322 months’
imprisonment. We affirmed Thomas’s convictions and sentence on appeal. See United

States v. Thomas, No. 97-7387 (judgment entered March 13, 1998). Thomas’s first

motion to vacate sentence under 28 U.S.C. § 2255 was filed in September 1998 and was

denied by the District Court. We declined to issue Thomas a certificate of appealability.

See United States v. Thomas, No. 99-3050 (order entered August 12, 1999). Thomas

subsequently filed a series of applications under 28 U.S.C. § 2244 seeking our

authorization to file a second or successive § 2255 motion, each of which was denied.

       In his current habeas petition, filed pursuant to 28 U.S.C. § 2241, Thomas argues

that his sentence violates his Fifth and Sixth Amendment rights because he did not

concede and a jury did not determine that his prior state convictions qualified as a basis

for enhancement under the sentencing guidelines. Thomas also argues that counsel was

ineffective for failing to object to the sentence enhancements and because he “wasted”

Thomas’s appeal rights by only contesting the testimony of one witness, which he had

failed to object to during trial. The District Court dismissed Thomas’s petition for lack of

jurisdiction, rejecting Thomas’s contention that § 2255 was an “inadequate or ineffective”

means by which to raise his claims.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. After a careful

review of the record, we conclude that Thomas’s appeal must be dismissed. See 28

U.S.C. § 1915(e)(2)(B)(i).

       Section 2255 is the presumptive means for a federal prisoner to challenge his

sentence or conviction. Davis v. United States, 417 U.S. 333, 343 (1974). A habeas

                                             2
petitioner can seek relief under 28 U.S.C. § 2241 only if the remedy provided by § 2255

is “inadequate or ineffective to test the legality of [the] detention.” See 28 U.S.C. § 2255

¶ 5. As noted by the District Court, § 2255 is not inadequate or ineffective merely

because Thomas cannot meet the AEDPA’s stringent gatekeeping requirements. See

Dist. Ct. Op. at 2; Cradle v. United States ex rel. Miner, 290 F.3d 536, 539 (3d Cir. 2002)

(per curiam). Rather, § 2255 is inadequate or ineffective only where the petitioner

demonstrates a limitation in the scope or procedure offered by § 2255 which would

prevent him from having a full hearing and adjudication of his claim. See Cradle, 290

F.3d at 538. Thomas has not demonstrated such a limitation in § 2255's scope or

procedure. Thomas’s petition raises no claims which could not have been raised in a

motion pursuant to § 2255. In fact, Thomas’s proposed claims are similar, if not

identical, to claims he attempted to raise in his § 2244 applications. Thomas cannot use

§ 2241 as an alternative means of presenting these claims in the District Court.

       Section 1915(e)(2)(B)(i) instructs us to dismiss any appeal brought in forma

pauperis if, inter alia, it lacks an arguable basis in law or in fact. Neitzke v. Williams,

490 U.S. 319 (1989). Because the District Court’s judgment was clearly correct, Thomas

had no arguable legal basis upon which to appeal. Accordingly, Thomas’s appeal will be

dismissed under § 1915(e)(2)(B). Appellant’s motion for the appointment of counsel is

DENIED.




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