                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-23-2009

Kelly Pierre v. David Ebbert
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3936




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

Recommended Citation
"Kelly Pierre v. David Ebbert" (2009). 2009 Decisions. Paper 1708.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1708


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
ALD-117                                                 NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                                No. 08-3936
                                ___________

                              KELLY PIERRE,
                                                 Appellant

                                      v.

                       DAVID EBBERT, WARDEN;
                   THERESA MCKEEVER, F.B.I. AGENT;
                     MICHAEL KEELY, F.B.I. AGENT;
                     DIANE GUJARTI, ASSIST. U.S.A.;
                    WILLIAM STEMLLMACH, A.U.S.A;
                         RICHARD D. OWENS;
                        CHRISTOPHER J. CLARK

                      _____________________________

                On Appeal from the United States District Court
                    for the Middle District of Pennsylvania
                         (D.C. Civil No. 08-cv-01370 )
                 District Judge: Honorable John E. Jones, III

                  ____________________________________

                Submitted for Possible Summary Action Pursuant
                   to Third Circuit LAR 27.4 and I.O.P. 10.6
                               February 26, 2009

          Before: SLOVITER, FUENTES AND JORDAN, Circuit Judges

                           (filed: March 23, 2009 )
                                   _______

                                  OPINION
                                  _________
PER CURIAM

       Kelly Pierre, an inmate confined in the Clinton County Correctional Facility in

McElhattan, Pennsylvania, appeals from an order of the United States District Court for

the Middle District of Pennsylvania denying his petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2241. The Appellees have filed a motion for summary

affirmance. Because this appeal does not present a substantial question, we will grant the

motion. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

       Pierre pleaded guilty to charges of conspiracy to commit mail fraud and wire fraud.

In July 2006, he was sentenced by the United States District Court for the Southern

District of New York to forty-six months of incarceration. The Second Circuit Court of

Appeals affirmed the judgment on July 17, 2008. On July 21, 2008, Pierre filed a petition

pursuant to 28 U.S.C. § 2241 in the District Court for the Middle District of

Pennsylvania, the district where he was (and remains) confined. In his petition, Pierre

alleged that the sentencing court lacked subject matter jurisdiction to enter judgment

against him; the agents investigating his case violated due process, equal protection and

the Fourth Amendment; and that he committed no crime. The District Court dismissed

Pierre’s petition. Pierre timely filed this appeal. For the reasons that follow, we will

grant Appellee’s motion for summary affirmance

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise

plenary review over the district court’s legal conclusions, and review its factual findings

for clear error. See Lambert v. Blackwell, 134 F.3d 506, 512 (3d Cir. 1998). Upon
review, we conclude that the District Court properly dismissed the underlying 28 U.S.C. §

2241 petition through which Pierre sought to challenge his conviction and sentence.

        A prisoner in custody may challenge his conviction and sentence in a 28 U.S.C. §

2255 proceeding before the sentencing court. See United States v. Miller, 197 F.3d 644,

648 n.2 (3d Cir. 1999). An application for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2241 shall not be entertained if it appears that the applicant has failed to apply for relief

in the sentencing court, unless it appears that the remedy is “inadequate or ineffective to

test the legality of his detention.” 28 U.S.C. § 2255(e); Cradle v. United States, 290 F.3d

536, 538 (3d. Cir. 2002). A motion pursuant to § 2255 is “inadequate or ineffective” only

when some limitation of scope or procedures would prevent the prisoner from receiving

adequate adjudication of his claims. Id.

       As the District Court explained, the claims presented in Pierre’s habeas petition

fall within the purview of 28 U.S.C. § 2255, because Pierre sought to challenge his

sentence and conviction. In addition, Pierre did not assert in his § 2241 petition that relief

under § 2255 was ineffective or inadequate. Because the District Court for the Middle

District of Pennsylvania is not the sentencing court and Pierre has not shown that relief

under § 2255 would be inadequate or ineffective, the Court correctly concluded that he

could not seek relief under § 2241. See Cradle, 290 F.3d at 538. We GRANT the

Government’s motion and will summarily affirm the District Court’s dismissal of Pierre’s

§ 2241 petition.
