                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-11-2003

Harris v. Romine
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3580




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"Harris v. Romine" (2003). 2003 Decisions. Paper 279.
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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 01-3580


                                  GEORGE HARRIS,
                                           Appellant
                                        v.

                               DON ROM INE, Warden,
                                U.S.P. Lewisburg, USA

                                     ____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                            (D.C. Civ. No. 00-cv-01490)
                   District Judge: Honorable James M. Munley
                                   ____________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                   April 1, 2002
               Before: SLOVITER, AMBRO, and W EIS, Circuit Judges.

                                  (Filed: September 11, 2003)
                                     ____________

                                       OPINION


WEIS, Circuit Judge.

             In 1988, a jury in the United States District Court for the Eastern District of

Virginia found George Harris guilty of engaging in a continuing criminal enterprise



                                             1
(“CCE”) in violation of 21 U.S.C. § 848, 28 counts of distributing cocaine in violation of

21 U.S.C. § 841, four counts of unlawfully using a communication facility to facilitate

drug-trafficking in violation of 21 U.S.C. § 843(b), and two counts of interstate travel in

aid of racketeering in violation of 18 U.S.C. § 1952(a)(3). A conviction for conspiracy in

violation of 21 U.S.C. § 846 was vacated on motion of the Government.

              The Court sentenced Harris to life in prison on the CCE charge and to 35

years, to be served consecutively with the life sentence, on the remaining counts. Harris’s

direct appeal was unsuccessful, and his motion pursuant to 28 U.S.C. § 2255 to vacate his

sentence was denied in 1992.

              In 1995, Harris filed a second section 2255 motion, contending that the trial

court had erred by failing to instruct the jury that it had to agree unanimously on the

specific violations that constituted the continuing series required for a CCE conviction.

The District Court acknowledged that some courts required such an instruction, but it

concluded that the lack of such an instruction was not error. After the Supreme Court

held to the contrary in Richardson v. United States, 526 U.S. 813, 818-19 (1999), Harris

sought leave to file a successive section 2255 motion raising a claim based on the Court’s

decision. The Court of Appeals for the Fourth Circuit denied the request. 1




              1
                Richardson did not state a rule of constitutional law. See Richardson, 526
U.S. at 818-19 (deciding the case on statutory grounds); see also 28 U.S.C. § 2255 ¶ 8
(standards for approving a successive section 2255 motion).

                                              2
              Harris then filed a 28 U.S.C. § 2241 petition in the District Court for the

Middle District of Pennsylvania. He contends that (i) his conviction was constitutionally

invalid because no Richardson instruction had been given and (ii) his sentence was

unlawful under Apprendi v. New Jersey, 530 U.S. 466 (2000). The Government’s

response argued that Harris was not entitled to seek relief via section 2241. In his reply,

Harris made two new, but related, arguments: that (i) his indictment did not adequately

charge a conspiracy in violaution of 21 U.S.C. § 8462 and (ii) his life sentence on the

CCE conviction violated Apprendi.

              The District Court dismissed the petition on the ground that Apprendi was

not applicable retroactively on collateral review and, therefore, Harris could not proceed

under section 2241. Harris appealed to this Court and we held the case c.a.v. pending the

decision in Largo v. Bailey, 01-1643, where a similar issue had been raised. The panel in

that case handed down its opinion on June 11, 2003 and we now proceed to disposition of

Harris’ appeal.

              Under the explicit terms of section 2255, unless a section 2255 motion

would be “inadequate or ineffective,” a habeas petition under section 2241 cannot be

entertained by a court. See Application of Galante, 437 F.2d 1164, 1165 (3d Cir. 1971).

Section 2255 is not “inadequate or ineffective” merely because the sentencing court has




              2
             This argument is frivolous - the section 846 conviction was vacated on the
Government’s motion.

                                             3
previously denied relief or because the gatekeeping provisions of section 2255 make it

difficult to prosecute successive motions. See In re Dorsainvil, 119 F.3d 245, 251 (3d

Cir. 1997) (explaining that a prisoner could resort to section 2241 if he “had no earlier

opportunity to challenge his conviction for a crime that an intervening change in

substantive law may negate”).

              In Okereke v. United States, 307 F.3d 117, 119 (3d Cir. 2002), this Court

held that the District Court lacked jurisdiction to consider Okereke’s Apprendi claims by

recharacterizing his section 2255 motion as a motion for relief pursuant to 28 U.S.C. §

2241. We explained that section 2255 was neither “inadequate or ineffective for Okereke

to raise his Apprendi argument.” Okereke, 307 F.3d at 121.

              In this case, the District Court properly concluded that Harris could not

proceed under section 2241.3 We recognize that Okereke involved a successive section

2255 motion (treated by the District Court as a section 2241 petition), whereas Harris’

petition was submitted and treated as one brought under 28 U.S.C. § 2241. However, this

variation is a distinction without a difference as to the District Court’s jurisdiction to

reach the merits of an Apprendi claim.




              3
               This Court has arrived at this same conclusion in two other unpublished
opinions. See Chambers v. Romine, 2002 WL 1283398, *2 (3d Cir. May 6, 2002) &
Largo v. Bailey, 2003 WL 21356962, *2 (3d Cir. June 11, 2003).


                                               4
              Those persons convicted in federal court who wish to collaterally attack

their convictions must proceed through motions pursuant to 28 U.S.C. § 2255. Section

2241 may be invoked only when section 2255 proves “inadequate or ineffective” to test

the legality of the detention. Harris has not shown us that his section 2255 petitions have

been inadequate or ineffective simply because he was previously denied relief. See In re

Dorsainvil, 119 F.3d at 251.

              The District Court properly concluded that it lacked jurisdiction to hear

Harris’ section 2241 petition. Accordingly, the order of the District Court will be

affirmed.




                                             5
_________________________

TO THE CLERK:

           Please file the foregoing Opinion.


                                      /s/ Joseph F. Weis
                                      Circuit Judge




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