                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-4-2005

Johnson v. Apker
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2258




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Recommended Citation
"Johnson v. Apker" (2005). 2005 Decisions. Paper 731.
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CPS-277                                                        NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                 ________________

                                      No. 05-2258
                                   ________________

                                EDWARD R. JOHNSON,

                                                  Appellant

                                             v.

                                CRAIG APKER, Warden
                                  ________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                              (D.C. Civ. No. 05-cv-00284)
                    District Judge: Honorable James F. McClure, Jr.
                                  ________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                 JUNE 23, 3005

               Before:      ALITO, MCKEE and AMBRO, Circuit Judges

                                  (Filed: August 4, 2005)

                                   ________________

                                       OPINION
                                   ________________

PER CURIAM.

       Edward R. Johnson, a federal inmate at LSCI-Allenwood in Pennsylvania, appeals

from the dismissal of his petition for a writ of habeas corpus pursuant to 28 U.S.C. §

2241. Johnson was convicted in the United States District Court for the Eastern District
of Virginia of possessing more than five grams of crack cocaine with intent to distribute

and sentenced to 292 months in prison. The United States Court of Appeals for the

Fourth Circuit affirmed the conviction and sentence, and the Supreme Court denied

certiorari in 1997. In 2001, the sentencing court denied Johnson’s motion pursuant to 28

U.S.C. § 2255. Johnson did not appeal that decision.

       Johnson then filed a § 2241 proceeding in the District Court for the Middle District

of Pennsylvania, arguing that his conviction and sentence violate the rule announced in

Apprendi v. New Jersey, 530 U.S. 466 (2000). The District Court dismissed the § 2241

petition because Johnson failed to make the requisite showing that his remedy by § 2255

motion is “inadequate or ineffective” such that he can raise an Apprendi claim in a § 2241

petition. This Court affirmed, noting that the proper course was for Johnson to pursue an

application with the Fourth Circuit for permission to file a second or successive § 2255

motion. See Johnson v. Gerlinski, C.A. No. 01-4039 (3d Cir. Apr. 29, 2002) (non-

precedential, per curiam opinion).

       Johnson next filed such an application with the Fourth Circuit, and permission to

file a second § 2255 motion was denied in November 2004. In January 2005, Johnson

then filed this § 2241 proceeding, again claiming that his conviction and sentence violate

Apprendi and that his remedy by § 2255 motion is inadequate or ineffective. The District

Court denied relief, noting that Johnson’s remedy by § 2255 motion is not inadequate or

ineffective merely because he has been denied permission to pursue a second § 2255

motion. The District Court added that Johnson’s petition must fail even if he were to

                                             2
invoke the subsequent decisions in Blakely v. Washington, 124 S. Ct. 2531 (2004), and

United States v. Booker, 125 S. Ct. 738 (2005), as those cases are not retroactively

applicable on collateral review. Johnson timely filed this appeal.1

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the

District Court’s decision is de novo. United States v. Cleary, 46 F.3d 307, 309-10 (3d

Cir. 1995). The appellee has filed a motion for summary affirmance, which should be

granted if the appeal presents “no substantial question,” 3d Cir. LAR 27.4 and I.O.P. 10.6.

After a careful review of the record, we will grant the appellee’s motion and summarily

affirm the District Court’s judgment.

       As the District Court correctly explained, Johnson’s challenge to the validity of his

conviction and sentence based on Apprendi and its progeny must be raised in a § 2255

motion, not under § 2241. A § 2255 motion is inadequate and ineffective “only if it can

be shown that some limitation of scope or procedure would prevent a Section 2255

proceeding from affording the prisoner a full hearing and adjudication of his claim of

wrongful detention.” United States v. Brooks, 230 F.3d 643, 648 (3d Cir. 2000); see In re

Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997) (holding that “a prisoner who had no earlier

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

substantive law may negate” can proceed under § 2241). Johnson has made no such



  1
    Johnson also filed a timely motion for reconsideration, which the District Court
denied by Order entered May 2, 2005. Because Johnson has not timely filed an appeal or
an amended notice of appeal from the May 2 Order, we lack jurisdiction to review the
denial of his motion for reconsideration. See Fed. R. App. P. 4(a)(4)(B)(ii).

                                             3
showing here. Indeed, we have held that § 2255 is not “inadequate or ineffective” for

prisoners seeking to raise an Apprendi claim in a § 2241 proceeding. Okereke v. United

States, 307 F.3d 117, 120-21 (3d Cir. 2002). Moreover, it is settled that mere inability to

satisfy the stringent requirements for filing a second or successive § 2255 motion does not

establish that § 2255 is inadequate or ineffective. In re Dorsainvil, 119 F.3d at 251.

       Johnson contends that his claim is actually premised upon the due process

requirements of In re Winship, 397 U.S. 358 (1970), and not the Apprendi line of case,

and as such, he should be permitted to seek relief under § 2241. See Mtn. for Summary

Reversal at 3. Regardless of which Supreme Court precedent Johnson purports to rely

upon, the fact remains that his remedy by § 2255 motion is not an inadequate or

ineffective means to test the legality of his detention, and thus § 2241 is unavailable.

       In short, because this appeal presents no substantial question, we will summarily

affirm the District Court’s judgment. Johnson’s Motion for Summary Reversal is denied.




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