ALD-031                                                      NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 12-3117
                                     ____________

                                  NEZZY ADDERLY,
                                              Appellant
                                         v.

                          DONNA ZICKEFOOSE, Warden
                       __________________________________

                    On Appeal from the United States District Court
                           for the District of New Jersey
                            (D.C. Civ. No. 11-cv-06450)
                          District Judge: Robert B. Kugler
                      __________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   November 2, 2012

             Before: SLOVITER, VANASKIE and WEIS, Circuit Judges
                       (Opinion filed: November 15, 2012)
                                  ____________

                                       OPINION
                                     ____________


PER CURIAM.

      Appellant Nezzy Adderly pleaded guilty in the United States District Court for the

Eastern District of Pennsylvania to violating 18 U.S.C. § 922(g), and to being an armed

career criminal under 18 U.S.C. § 924(e). He was sentenced to the mandatory minimum

term of imprisonment of 15 years and three years of supervised release. We affirmed in

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United States v. Adderly, 306 Fed. Appx. 766 (3d Cir. 2009). In July, 2009, Adderly

filed a motion to vacate sentence, 28 U.S.C. § 2255, in the sentencing court, which was

denied. See United States v. Adderly, 2010 WL 1047689 (E.D. Pa. March 19, 2010).

Adderly appealed at C.A. No. 10-1902, and we denied his request for a certificate of

appealability on August 17, 2010.

       On November 2, 2011, Adderly filed a petition for writ of habeas corpus, 28

U.S.C. § 2241, in the United States District Court for the District of New Jersey, where

he is confined. He argued that he is actually innocent of his 15-year sentence under 18

U.S.C. § 924(e)(1), because his predicate crimes are not violent felonies under the

ACCA, see id. at § 924(e)(2). In a memorandum in support, Adderly argued that he

objected to the use of the prior convictions at his sentencing hearing, but the objection

went unresolved. The District Court dismissed the habeas corpus petition for lack of

jurisdiction, finding no basis for application of section 2255’s “safety valve.” The

District Court further noted that Adderly had already raised his claim that his state

offenses should not qualify as violent felonies in his section 2255 proceedings, and he

could not use habeas corpus to relitigate this issue. We summarily affirmed on January

27, 2012, see Adderly v. Zickefoose, 459 Fed. Appx. 73 (3d Cir. 2012) (prisoner’s

challenge to armed career criminal sentence does not fall within purview of savings

clause).

       Several months later, Adderly filed a post-judgment item in the District Court

titled “Motion for Adequate Representation of Defendants,” requesting that counsel be

appointed to represent him. In the interest of justice, he argued, counsel should be

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appointed because he may have a valid claim under our not precedential decision in

Pollard v. Yost, 406 Fed. Appx. 635 (3d Cir. 2011). He further argued that he had no

earlier opportunity to challenge his sentence on the basis of an intervening change in the

law, citing Johnson v. United States, 130 S. Ct. 1265 (U.S. 2010) (defendant’s prior

battery conviction under Florida law not violent felony under ACCA); Chambers v.

United States, 555 U.S. 122 (2009) (failure to report conviction under Illinois law not a

violent felony under ACCA); and Begay v. United States, 553 U.S. 137 (2008) (driving

under influence conviction under New Mexico law not violent felony under ACCA). In

an order entered on July 11, 2012, the District Court denied the motion on the basis of

lack of subject matter jurisdiction.

       Adderly appeals. We have jurisdiction over Adderly’s post-judgment motion. See

Isidor Paiewonsky, Inc. v. Sharp Properties, Inc., 998 F.2d 145 (3d Cir. 1993); Plymouth

Mut. Life Ins. Co. v. Illinois Mid-Continent Life Ins. Co., 378 F.2d 389, 391 (3d Cir.

1967). Our Clerk advised the parties that we might act summarily under Third Cir. LAR

27.4 and I.O.P. 10.6 to dispose of the appeal. Under Third Circuit LAR 27.4 and I.O.P.

10.6, we may summarily dispose of an appeal when it clearly appears that no substantial

question is presented by the appeal. Adderly has filed a motion for appointment of

counsel on appeal, raising the same arguments he raised before the District Court.

       We will summarily affirm because no substantial question is presented by this

appeal. In deciding whether to appoint counsel, the District Court should consider as a

threshold matter whether the petition has arguable merit in fact or law. Tabron v. Grace,

6 F.3d 147, 155 (3d Cir. 1993). As explained by the District Court, Adderly’s case is

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closed. He would thus need to seek reopening of the judgment in order to proceed with a

counsel motion, and he has not done so. We note that Federal Rule of Civil Procedure

60(b) provides for relief from a final judgment only for the following reasons: “(1)

mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that,

with reasonable diligence, could not have been discovered in time to move for a new trial

under Rule 59(b); (3) fraud, … misrepresentation, or misconduct by an opposing party;

(4) the judgment is void; (5) the judgment has been satisfied, released or discharged … ;

or (6) any other reason that justifies relief.” Fed. R. Civ. Pro. 60(b).

       In Pollard, a panel of this Court held that subject matter jurisdiction over the

prisoner’s claim of actual innocence of an armed career criminal sentence was lacking.

Accordingly, the District Court properly denied his habeas corpus petition, 28 U.S.C. §

2241. However, the District Court’s order was affirmed on the basis that the prisoner had

not shown that a failure to consider his actual innocence claim would work a miscarriage

of justice; the issue of whether the safety valve could be applied to a sentencing claim of

actual innocence – for example, where a subsequent change in the law regarding what

constitutes a predicate crime renders the sentence invalid – was left open. Pollard, 406

Fed. Appx. at 638.

       Although we consider here only whether the District Court properly denied

Adderly’s post-judgment counsel motion, it does not appear that Pollard provides a basis

for reopening his habeas corpus case, even if he had filed a Rule 60(b) motion. As a

threshold matter, Pollard was decided on January 24, 2011, in plenty of time for Adderly

to rely on it in his November, 2011 habeas corpus petition. Cf. Gonzalez v. Crosby, 545

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U.S. 524, 531-32 (2005) (Rule 60(b) motion which seeks to advance substantive claim

that was omitted from original petition is in substance impermissible successive habeas

corpus petition). The other cases cited by Adderly, Johnson, Chambers, and Begay, also

were decided well before he filed his section 2241 petition. Moreover, Adderly pleaded

guilty to being an armed career criminal. Having pleaded guilty, we see no complete

miscarriage of justice sufficient to justify habeas corpus jurisdiction. As we explained in

Pollard, because it was a plea agreement that determined the sentence, it cannot be

determined whether the sentence would have been shorter had Johnson, Chambers, and

Begay already been decided, see Pollard, 406 Fed. Appx. at 638 & n.4.

       For the foregoing reasons, we will summarily affirm the order of the District Court

denying Adderly’s post-judgment “Motion for Adequate Representation of Defendants.”

Adderly’s motion for appointment of counsel on appeal is denied.




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