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


8-17-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2319




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Recommended Citation
"Smith v. Nash" (2005). 2005 Decisions. Paper 687.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/687


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                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       NO. 05-2319
                                    ________________

                                      CARL SMITH,

                                                   Appellant

                                              v.

                        WARDEN JOHN NASH, FCI FORT DIX;
                           UNITED STATES OF AMERICA
                       ____________________________________

                     On Appeal From the United States District Court
                                For the District of New Jersey
                               (D. N.J. Civ. No. 05-cv-01282)
                      District Judge: Honorable Jerome B. Simandle
                      _____________________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   August 1, 2005

               Before: SLOVITER, BARRY and FISHER, Circuit Judges.

                                 (Filed: August 17, 2005)
                                _______________________

                                       OPINION
                                _______________________

PER CURIAM

       Carl Smith, a federal prisoner proceeding pro se, appeals an order of the United

States District Court for the District of New Jersey dismissing his petition for a writ of
habeas corpus under 28 U.S.C. § 2241 for lack of subject matter jurisdiction. We will

affirm the District Court’s order.

       In 1991, Smith pled guilty to drug charges and was sentenced to twenty-seven

years in prison. Smith states that he did not file a direct appeal, or a motion to vacate his

sentence under 28 U.S.C. § 2255. In 2005, Smith filed a habeas petition under § 2241

raising a claim that the District Court improperly enhanced his sentence based upon facts

that were not established by his plea or found by a jury. Although he cites no authority,

Smith raises a claim under United States v. Booker, 125 S. Ct. 738 (2005). The District

Court dismissed the petition, holding that Smith could not bring his claim under § 2241.

This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our standard

of review is plenary. Bakhtriger v. Elwood, 360 F.3d 414, 417 (3d Cir. 2004).

       As recognized by the District Court, unless a motion under § 2255 would be

“inadequate or ineffective,” it is the means by which federal prisoners can challenge their

convictions or sentences. Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). A

§ 2255 motion is inadequate or ineffective only if the petitioner shows that a limitation of

scope or procedure would prevent a § 2255 proceeding from affording him a full hearing

and adjudication of his wrongful detention claim. Id.

       The Court in Okereke held that § 2255 is not inadequate or ineffective to raise a

claim under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), which established that at

sentencing a judge could enhance a sentence based on facts not admitted by the defendant



                                              2
or found by the jury, so long as the enhancement did not increase the defendant’s

sentence beyond the prescribed statutory maximum. Similarly, § 2255 is not inadequate

or ineffective to raise a claim under Booker, which is an extension of Apprendi. The fact

that a claim is time-barred does not make § 2255 an inadequate or ineffective remedy.

Cradle v. United States, 290 F.3d 536, 539 (3d Cir. 2002) (per curiam). Thus, the District

Court correctly held that Smith may not bring his Booker claim under § 2241.1

       Smith also challenges the District Court’s recharacterization of his § 2241 petition

as a motion under § 2255 without giving him notice and allowing him to amend or

withdraw it. In recharacterizing the petition, the District Court acknowledged the notice

requirements of United States v. Miller, 197 F.3d 644 (3d Cir. 1999), but determined that

notice would serve no purpose because the statute of limitations applicable to any § 2255

motion Smith may file had expired. As Smith does not contend that he has other § 2255

claims for which a statutory or equitable basis for tolling the statute of limitations applies,

the District Court did not err.

       Accordingly, we will affirm the District Court’s order.




       1
         We agree with the District Court that Smith’s claim is time-barred under § 2255.
Although the statute of limitations is tolled when the Supreme Court recognizes a new
right, that right also must have been made retroactively applicable to cases on collateral
review. 28 U.S.C. § 2255. Booker is not retroactively applicable to cases on collateral
review. Lloyd v. United States, 407 F.3d 608, 610 (3d Cir. 2005).

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