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


6-6-2007

Thibeau v. Miner
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5190




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Recommended Citation
"Thibeau v. Miner" (2007). 2007 Decisions. Paper 995.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/995


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CLD-239                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 06-5190
                                   ________________

                              MARK WAYNE THIBEAU,

                                             Appellant

                                               v.

                                JOHNATHAN C. MINER

                       ____________________________________

                     On Appeal From the United States District Court
                         For the Middle District of Pennsylvania
                               (D.C. Civ. No. 06-cv-01925)
                      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
                                    May 17, 2007

           Before: RENDELL, SMITH AND JORDAN, CIRCUIT JUDGES

                                  (Filed June 6, 2007)
                               _______________________

                                       OPINION
                               _______________________

PER CURIAM

       Mark Wayne Thibeau appeals the District Court’s order dismissing his petition

filed pursuant to 28 U.S.C. § 2241. In 1999, Thibeau pled guilty to conspiracy to

distribute cocaine base in the District Court for the Western District of North Carolina
and was sentenced to 151 months in prison and five years of supervised release. He did

not appeal. Thibeau subsequently filed a motion pursuant to 28 U.S.C. § 2255, an

application for permission to file a second or successive § 2255 motion, and a petition

under § 2241. All were unsuccessful. Thibeau argued in the instant § 2241 petition that

his five-year term of supervised release was more than the three-year term allowed under

21 U.S.C. § 841(b)(1)(C). He requested that the District Court transfer the petition to the

District Court for the Western District of North Carolina. The District Court dismissed

the petition. Thibeau filed a timely notice of appeal, and we have jurisdiction under 28

U.S.C. § 1291.

       The District Court did not err in dismissing Thibeau’s § 2241 petition. Thibeau

seeks to have the supervised release portion of his sentence corrected on the grounds that

it is in excess of the maximum authorized by statute; this falls clearly within 28 U.S.C. §

2255. Thibeau’s § 2241 petition may not be entertained unless a motion under § 2255 is

“inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255.

Previous unsuccessful § 2255 motions are not sufficient to show that a § 2255 motion is

inadequate or ineffective. Litterio v. Parker, 369 F.2d 395, 396 (3d Cir. 1966); see also In

re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). Moreover, we note that in his plea

agreement, Thibeau admitted that the amount of cocaine base involved was at least five

hundred grams. The penalty for offenses involving that amount of cocaine base is

provided by 21 U.S.C. § 841(b)(1)(A) which mandates a period of supervised release of

at least five years.

                                             2
      Summary action is appropriate if there is no substantial question presented in the

appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by

the District Court, we will summarily affirm the District Court’s order. See Third Circuit

I.O.P. 10.6. Appellant’s motions for summary reversal are denied.




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