                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-11-2008

Terry Middleton v. David Ebbert
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3035




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"Terry Middleton v. David Ebbert" (2008). 2008 Decisions. Paper 123.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/123


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
HLD-17 (November 2008)                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-3035
                                      ___________

                                 TERRY MIDDLETON,
                                               Appellant
                                        vs.

                                DAVID J. EBBERT
                      ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. Civil No. 08-cv-00827)
                        District Judge: Honorable Yvette Kane
                      ____________________________________

        Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
        or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 November 26, 2008
      Before: SCIRICA, CHIEF JUDGE, WEIS and GARTH, CIRCUIT JUDGES

                               (Filed: December 11, 2008)
                                        _________

                                       OPINION
                                       _________

PER CURIAM.

              Terry Middleton appeals from the order of the United States District Court

for the Middle District of Pennsylvania dismissing his habeas petition filed under

28 U.S.C. § 2241. We will affirm.

                                            1
              Middleton alleged in his section 2241 habeas petition that in 1991, he was

convicted in the United States District Court for the Northern District of Florida of

possession of a shotgun by a convicted felon in violation of 18 U.S.C. §§ 922(g)) and

924(e); he had committed the offense in 1988. He was sentenced to 180 months, to run

consecutive to a twenty year sentence imposed by the Circuit Court of Duval County,

Florida. The United States Court of Appeals for the Eleventh Circuit affirmed on direct

appeal. In December 1993, Middleton filed in the sentencing court a motion to vacate, set

aside or correct his sentence under 28 U.S.C. § 2255, which was denied. The Eleventh

Circuit affirmed in May 1997.

              About eleven years later, in May 2008, Middleton filed his section 2241

habeas petition in the District Court.1 He asserted that the sentencing court applied

provisions from both the 1988 and 1990 United States Sentencing Guidelines manuals, to

his detriment. Specifically, he argued that the District Court wrongly applied the 1990

version of U.S.S.G. § 5G1.3, which made concurrent sentencing discretionary, instead of

applying the 1988 version of section 5G1.3, which would have mandated concurrent

sentencing. If his federal sentence had been imposed to run concurrently with his state

sentence, his sentence would have expired by now, but instead his release date is

calculated for the year 2020. Thus, Middleton claims that his sentence violates the Ex




   1
     Middleton was, and is currently, an inmate of the Federal Correctional Institution-
Allenwood at White Deer, Pennsylvania.

                                             2
Post Facto Clause of the United States Constitution. He contended that he was entitled to

have his claim heard under section 2241 in light of the statutory bar against filing second

or successive section 2255 motions.

              On June 20, 2008, the District Court dismissed the section 2241 habeas

petition. The District Court concluded that Middleton had failed to demonstrate that

section 2255 is inadequate or ineffective such that he should be allowed to proceed under

section 2241. Middleton appeals.2 We have appellate jurisdiction pursuant to 28 U.S.C.

§ 1291.

              A section 2255 motion filed in the sentencing court is the presumptive

means for a federal prisoner to challenge the validity of a conviction or sentence. See

Davis v. United States, 417 U.S. 333, 343 (1974); In re Dorsainvil, 119 F.3d 245, 249

(3d Cir. 1997). A habeas petitioner can seek relief under section 2241 only if the remedy

provided by section 2255 is inadequate or ineffective to test the legality of his detention.

See 28 U.S.C. § 2255; In re Dorsainvil, 119 F.3d at 249-51. A section 2255 motion is not

“inadequate or ineffective” merely because the petitioner cannot meet the stringent

gatekeeping requirements of section 2255, Okereke v. United States, 307 F.3d 117, 120

(3d Cir. 2002), or because the sentencing court does not grant relief, Cradle v. United

States ex rel. Miner, 290 F.3d 536, 539 (3d Cir. 2002) (per curiam). Rather, the “safety



   2
     Middleton filed a motion for reconsideration in District Court, which the District
Court denied on July 21, 2008. Middleton did not separately appeal that order, so we will
not review it. See Fed. R. App. P. 4(a)(4)(B)(ii).

                                              3
valve” provided under section 2255 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).

              We agree with the District Court that Middleton’s situation is not the rare

one rendering section 2255 inadequate or ineffective. That Middleton has already

unsuccessfully pursued a section 2255 motion in the sentencing court and now faces a

statutory bar to filing another one does not show the inadequacy of that remedy. Neither

does his assumption that any attempt in obtaining authorization from the Eleventh Circuit

to file another section 2255 motion would be futile.3

              As he argued in District Court, Middleton asks this Court to apply the

“safety valve clause” of section 2255 in light of United States v. Lance, 23 F.3d 343 (11th

Cir. 1994), in which the court held that a sentencing court must apply the appropriate

Sentencing Guidelines manual in its entirety rather than applying individual provisions

taken from different versions of the Guidelines. Lance was not available to Middleton at

the time he filed his section 2255 motion in 1993. Middleton also contends that his

circumstances are “extraordinary” because he had no access to the Sentencing Guidelines




   3
     He concedes in his submission to this Court that he has not sought authorization from
the Eleventh Circuit to file a second section 2255 motion, but he states that the remedy is
procedurally unavailable to him under Eleventh Circuit case law. Even assuming his
assertion is true, our decision remains unchanged.

                                             4
manuals until 2005, when he was transferred from state custody to federal custody. We

are unpersuaded that his circumstances are so extraordinary as to expand the narrow

exception in Dorsainvil. See Okereke, 307 F.3d at 120 (petitioner cannot invoke section

2241 to pursue claim based on Apprendi v. New Jersey, 530 U.S. 466 (2000), because

that intervening change in law did not render crime for which appellant was convicted not

criminal).

             We have considered the record and Middleton’s arguments in his

memorandum in opposition to summary action. Because no substantial question is

presented by this appeal, we will summarily affirm the District Court’s judgment. See

Third Circuit LAR 27.4 and I.O.P. 10.6.




                                            5
