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


11-9-2007

Griffin v. Hogsten
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2937




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"Griffin v. Hogsten" (2007). 2007 Decisions. Paper 227.
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DLD-30                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                       No. 07-2937


                                  WILLIE J. GRIFFIN,
                                                 Appellant

                                             v.

                                 KAREN HOGSTEN,
                            Warden FCI Allenwood (Medium)


                     On Appeal From the United States District Court
                         For the Middle District of Pennsylvania
                            (M.D. PA. Civ. No. 07-cv-00676)
                      District Judge: Honorable A. Richard Caputo


             Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
             or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                     October 25, 2007


   Before:     BARRY, CHAGARES AND VAN ANTWERPEN, CIRCUIT JUDGES.

                                (Filed: November 9, 2007)


                                        OPINION


PER CURIAM

       Willie J. Griffin, a federal inmate housed at FCI-Allenwood in Pennsylvania,

appeals pro se from an order of the United States District Court for the Middle District of
Pennsylvania dismissing for lack of jurisdiction his habeas petition filed pursuant to 28

U.S.C. § 2241. In 1999, Griffin was convicted after a jury trial in the United States

District Court for the Northern District of Florida of possession with intent to distribute

cocaine and conspiracy to possess with intent to distribute cocaine and cocaine base. He

was sentenced to serve 252 months in prison. The Eleventh Circuit Court of Appeals

affirmed. Griffin filed a motion to vacate pursuant to 28 U.S.C. § 2255, which the

sentencing court denied. The Eleventh Circuit Court of Appeals declined to issue a

certificate of appealability and the United States Supreme Court denied certiorari. Griffin

then sought, in separate motions, a writ of error coram nobis, relief pursuant to Rule 60(b)

of the Federal Rules of Civil Procedure, and modification of his sentence under 18 U.S.C.

§ 3582(c)(2), all of which the sentencing court denied. Griffin has not applied to the

Eleventh Circuit Court of Appeals for permission to file a second or successive § 2255

motion pursuant to 28 U.S.C. § 2244.

       On April 11, 2007, Griffin filed this § 2241 petition asserting that the sentencing

court wrongly enhanced his sentence beyond the statutory maximum based on his prior

conviction in state court for possession of cocaine, in violation of Apprendi v. New

Jersey, 530 U.S. 466 (2000). He claims that his state court conviction should have been

treated as a misdemeanor, not a felony, under the reasoning in Lopez v. Gonzales, 127

S.Ct. 625 (2006) (holding that a state felony conviction for a drug offense that is treated

as a misdemeanor under the federal Controlled Substances Act does not constitute an



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“aggravated felony” under the Immigration and Nationality Act). Griffin alleged that he

filed a § 2241 petition because he had no other available means to challenge the

constitutionality of his conviction.

       The District Court dismissed the § 2241 petition for lack of jurisdiction pursuant to

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts,

28 U.S.C. foll. § 2254 (1977) (applicable to § 2241 petitions pursuant to Rule 1(b)), and

later denied Griffin’s motion for reconsideration. Griffin timely appealed.

       We have jurisdiction pursuant to 28 U.S.C. 1291. As the District Court properly

stated, 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 the sentencing

court does not grant relief, the one-year statute of limitations has expired, or the petitioner

is unable to meet the stringent gatekeeping requirements of the amended § 2255.” Id. at

539.

       Griffin cannot show that § 2255 is inadequate or ineffective to challenge the

legality of his detention. The “safety valve” provided under § 2255 does not apply in



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Griffin’s case. The safety valve provision 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 a crime later deemed to be non-criminal by an intervening

change in law. See Okereke, 307 F.3d at 120 (citing In re Dorsainvil, 119 F.3d at 251).

Griffin claims that he should not have been found guilty based on an allegedly defective

indictment. He falls far short of asserting, and we find nothing in this record to indicate,

that he is actually innocent of the crime for which he was convicted. The exception

identified in In re Dorsainvil is simply inapplicable, and Griffin is not entitled to seek

relief under § 2241.

       Because the petition was properly dismissed and no substantial question is

presented by this appeal, the District Court’s judgment will be affirmed. See Third

Circuit LAR 27.4 and I.O.P. 10.6. Griffin’s motion for appointment of counsel is denied.




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