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


12-6-2007

Northrop v. Lindsay
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3301




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Recommended Citation
"Northrop v. Lindsay" (2007). 2007 Decisions. Paper 125.
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CLD-43                                                          NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                        No. 07-3301


                               AARON BEN NORTHROP,
                                               Appellant

                                             v.

                                 WARDEN C. LINDSAY



                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                               (D.C. Civil No. 07-cv-0574)
                        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 8, 2007

               Before: AMBRO, FUENTES and JORDAN, Circuit Judges

                             (Opinion filed December 6, 2007)


                                         OPINION


PER CURIAM

       Aaron Ben Northrop appeals from an order of the United States District Court for

the Middle District of Pennsylvania dismissing for lack of jurisdiction his petition for writ

of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons that follow, we conclude
that Northrop’s appeal lacks arguable legal merit, and will dismiss it under 28 U.S.C. §

1915(e)(2)(B).

       In 1993, following a guilty plea entered in the United States District Court for the

District of Connecticut, Northrop was convicted of conspiracy to possess with intent to

distribute marijuana and cocaine, engaging in a continuing criminal enterprise (“CCE”),

possessing and making a destructive device, and two counts of use of interstate

communication facilities in the commission of murder for hire. In 1996, Northrop filed

his first unsuccessful § 2255 motion in the District of Connecticut. His second § 2255

motion was dismissed by the same court in January 1998. In 2000, the court dismissed

Northrop’s third § 2255 motion for lack of jurisdiction because he failed to obtain

permission from the court of appeals to file a second or successive § 2255 motion.

       Since then, Northrop has twice moved in the United States Court of Appeals for

the Second Circuit for authorization to file a successive § 2255 motion under 28 U.S.C. §

2244(b). He has also filed a petition for writ of habeas corpus in the Central District of

California. Each of these requests has been denied or dismissed.

       In the current § 2241 petition filed in the Middle District of Pennsylvania,

Northrop raises two challenges to his 1993 conviction and sentence. First, he claims that

his conviction in the District of Connecticut was obtained by fraud and should be set

aside. Specifically, he argues that the overt acts used to prove his CCE offense did not

qualify as proper predicate violations and, therefore, that his conviction and sentence on

count three was unlawful. Second, he claims that he and the Government entered into a

                                             2
plea agreement modifying his sentence and that his obligations under this “contract” have

been discharged and/or waived by the United States. The District Court dismissed

Northrop’s habeas petition for lack of jurisdiction because he should have asserted these

claims in a § 2255 motion filed in the District of Connecticut or by seeking leave of the

Second Circuit to bring a successive § 2255. Northrop appeals from that order.

       The District Court correctly dismissed Northrop’s petition. “Motions pursuant to

28 U.S.C. § 2255 are the presumptive means by which federal prisoners can challenge

their convictions or sentences that are allegedly in violation of the Constitution.”

Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). A federal prisoner can seek

relief under § 2241 only if the remedy provided by § 2255 is inadequate or ineffective to

test the legality of his detention. 28 U.S.C. § 2255; Cradle v. United States ex rel. Miner,

290 F.3d 536, 538 (3d Cir. 2002). Section 2255 is “inadequate or ineffective” only “in

the ‘unusual position’ of a prisoner with no prior opportunity to challenge his conviction

for a crime that an intervening change in substantive law could negate with retroactive

application.” Okereke, 307 F.3d at 120.

       Northrop contends that his remedy under § 2255 is inadequate because at the time

that he entered into the plea agreement he had a right to file a second § 2255 motion

based on newly discovered facts and upon a showing of cause and prejudice.

Specifically, he appears to claim that the Supreme Court’s decision in Richardson v.

United States, 526 U.S. 813, 815 (1999), and its progeny undermine the basis for his CCE

conviction. However, the courts of appeals that have considered the issue have concluded

                                              3
that a Richardson claim does not render § 2255 “inadequate or ineffective.” See, e.g.,

Kramer v. Olson, 347 F.3d 214, 218 (7th Cir. 2003) (a Richardson claim “is not the sort

that will permit passage through the narrow opening of § 2255’s savings clause”).

Moreover, Northrop admits that he knew of the relevant “evidence” before the District of

Connecticut denied his second § 2255 motion on June 14, 2001.

       As noted above, Northrop has already filed three § 2255 motions and two

applications to the Second Circuit for permission to file another § 2255 motion. The fact

that Northrop cannot satisfy the procedural requirements of § 2244 or § 2255 does not

render § 2255 an “inadequate or ineffective” remedy. See Cradle, 290 F.3d at 539. “It is

the inefficacy of the remedy, not the personal inability to use it, that is determinative.” Id.

at 538. Therefore, the District Court properly dismissed Northrop’s petition pursuant to

28 U.S.C. § 2241.

       In light of Northrop’s previous filings pursuant to § 2255 and his failure to

demonstrate the ineffectiveness or inadequacy of that remedy, we conclude that

Northrop’s appeal lacks arguable legal merit. Accordingly, we will dismiss it under §

1915(e)(2)(B).




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