                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-2-2006

Francis v. Smith
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4640




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Recommended Citation
"Francis v. Smith" (2006). 2006 Decisions. Paper 1645.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1645


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CPS-99                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     NO. 05-4640
                                  ________________

                                 FREDDIE FRANCIS

                                           v.

                                  JOSEPH V. SMITH

                    _______________________________________

                   On Appeal From the United States District Court
                       For the Middle District of Pennsylvania
                               (D.C. Civ. No. 05-cv-1086)
                     District Judge: Honorable James M. Munley
                   _______________________________________

                      Submitted For Possible Summary Action
                    Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                  January 20, 2006

             Before: BARRY, SMITH AND NYGAARD, Circuit Judges.

                                (Filed: February 2, 2006)

                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Freddie Francis appeals from the District Court’s order dismissing his petition for

a writ of habeas corpus under 28 U.S.C. § 2241. Because Francis’ appeal presents no

substantial question, we will grant the Government’s motion for summary affirmance.
       On August 30, 1999, Francis pleaded guilty to possession with intent to distribute

17.66 grams of cocaine base in violation of 21 U.S.C. § 841(a) and (b)(1)(B). The

District Court for the Western District of Louisiana sentenced him to a term of 300

months imprisonment and five years of supervised release. Francis’ direct appeal was

untimely and the Fifth Circuit Court of Appeals dismissed it for lack of jurisdiction.

United States v. Francis, No. 00-30792 (April 12, 2001). He then filed a motion to

vacate, modify, or set aside his sentence under 28 U.S.C. § 2255, alleging ineffective

assistance of counsel for failing to file a notice of appeal and that his sentencing violated

the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000). His direct appeal was

reinstated and the Court of Appeals affirmed his sentence. See United States v. Francis,

No. 02-30424 (5th Cir. Oct. 30, 2002). The United States Supreme Court denied

certiorari on January 13, 2003. United States v. Francis, 537 U.S. 1144 (2003).

       Francis continued to pursue collateral relief from his conviction and sentence. On

January 5, 2004, he filed another § 2255 motion claiming ineffective assistance of

counsel on a range of issues, implicating the validity of his plea and sentencing, as well as

ineffective assistance of counsel on appeal. On October 8, 2004, Francis filed a motion

styled as a motion under Fed. R. Crim. Pro. 35, to reduce his sentence due to alleged

mistakes at sentencing. Both of these motions were denied.

       On May 27, 2005, Francis filed the instant petition for habeas corpus in the District

Court for the Middle District of Pennsylvania. In the petition, Francis claims that his plea



                                              2
was not knowing and voluntary and that the plea colloquy did not comply with the

requirements of Fed. R. Crim. P. 11. He also claims that the sentencing court misapplied

the United States Sentencing Guidelines in his case, resulting in a higher offense level

and criminal history score. The District Court dismissed his petition because § 2255 is

not inadequate or ineffective to bring his claims. He filed a timely notice of appeal. We

will affirm.

       Generally, a challenge to the validity of a federal conviction or sentence must be

brought in a § 2255 motion. See Davis v. United States, 417 U.S. 333, 343 (1974). The

“savings clause” of § 2255 provides that a federal prisoner may proceed under § 2241

only if the remedy provided by § 2255 is inadequate or ineffective to test the legality of

his detention. See § 2255; In re Dorsainvil, 119 F.3d 245, 249-51 (3d Cir. 1997). “A

§ 2255 motion is inadequate or ineffective only where the petitioner demonstrates that

some limitation of scope or procedure would prevent a § 2255 proceeding from affording

him a full hearing and adjudication of his claims.” Cradle v. United States ex rel. Miner,

290 F.3d 536, 538 (3d Cir. 2002). The fact that a petitioner has previously been denied

relief, cannot meet the requirements for filing a second or successive § 2255 motion, or is

unable to comply with § 2255's statute of limitation, is insufficient to justify proceeding

under § 2241. Id.

       Francis provides no argument why § 2255 is inadequate or ineffective to bring his

current claims. The claims that Francis raises in his current petition are claims that he



                                              3
could have raised on direct appeal or in his previous collateral attacks on his conviction

and sentence. In fact, Francis has already challenged the voluntariness of his plea via

§ 2255, and repeatedly challenged both his offense level and criminal history score.

Insofar as he raises claims that have not already been litigated, there is no showing that

his failure to raise these claims previously was due to any limitation in the scope or

procedure of § 2255. See Cradle, 290 F.3d at 538.

       In short, upon consideration of Francis’ petition and “Opposition Brief ,” we

conclude that his appeal presents us with no substantial question. See Third Circuit

L.A.R. 27.4 and I.O.P. 10.6. Accordingly, we grant the Government’s motion for

summary affirmance and will affirm the District Court’s order. In light of the disposition

of Francis’ appeal, the motion for appointment of counsel on appeal is denied.




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