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


9-6-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2493




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Recommended Citation
"Thibeau v. Apker" (2005). 2005 Decisions. Paper 570.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/570


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CPS-321                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 05-2493
                                   ________________

                              MARK WAYNE THIBEAU,

                                                  Appellant

                                            v.

                                CRAIG APKER, Warden

                                   ________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                              (D.C. Civ. No. 05-cv-00454)
                     District Judge: Honorable A. Richard Caputo
                                  ________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  July 28, 2005

                BEFORE: ALITO, McKEE and AMBRO, Circuit Judges

                              (Filed:   September 6, 2005)

                                   ________________

                                       OPINION
                                   ________________

PER CURIAM

       Mark Wayne Thibeau, pro se, appeals an 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. We will affirm.

       In 1999, in the United States District Court for the Western District of North

Carolina, Thibeau pleaded guilty to conspiracy with intent to distribute cocaine and

cocaine base. He was sentenced to 151 months’ imprisonment and five years’ supervised

release. Thibeau did not appeal. He is currently housed at LSCI Allenwood in

Pennsylvania.

       A year after his judgment of sentence, Thibeau filed a motion pursuant to 28

U.S.C. § 2255 to vacate, set aside or correct his sentence in the Western District of North

Carolina. The District Court denied the motion. Thibeau sought permission to file a

second or successive § 2255 motion in the United States Court of Appeals for the Fourth

Circuit, which denied permission.

       Thibeau then filed the instant petition pursuant to § 2241 in the Middle District of

Pennsylvania. He claims that he is entitled to relief under § 2241 because he is actually

innocent and because he was unable to file another § 2255 motion on account of

AEDPA’s gatekeeping restrictions. The District Court dismissed Thibeau’s petition on

the basis that his inability to avail himself of relief under § 2255 because of AEDPA’s

gatekeeping provisions does not render § 2255 inadequate. See In re Dorsainvil, 119 F.3d

245, 251 (3d Cir. 1997). Thibeau sought reconsideration of the dismissal, which the

District Court denied. Thibeau timely appealed. We have jurisdiction pursuant to 28

U.S.C. § 1291. The Appellee has filed a motion for summary affirmance of the District

Court’s disposition. Thibeau has filed a motion for summary reversal.

                                             2
       We agree with the District Court that Thibeau is not entitled to bring his claims

under § 2241. His claims of actual innocence place his petition within the scope of §

2255, which is not inadequate simply because AEDPA’s gatekeeping restrictions prevent

Thibeau from using it. See Cradle v. United States ex rel. Miner, 290 F.3d 536, 538-39

(3d Cir. 2002); Dorsainvil, 119 F.3d at 215.

       Summary action is appropriate if there is no substantial question on appeal. See

Third Circuit LAR 27.4. For essentially the reasons set forth by the District Court, we

will grant Apker’s motion for summary affirmance and deny Thibeau’s motion for

summary reversal. See Third Circuit I.O.P. 10.6.




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