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


9-20-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3262




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Recommended Citation
"Reid v. Apker" (2005). 2005 Decisions. Paper 515.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/515


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APS-354                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO: 05-3262

                                     COLIN REID,
                                                     Appellant
                                            v.

                              WARDEN CRAIG APKER
                                _______________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                             (D.C. Civ. No. 05-cv-00902)
                      District Judge: Honorable Edwin M. Kosik
                    _______________________________________

              Submitted Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                September 1, 2005
        Before: SLOVITER, FUENTES AND NYGAARD, CIRCUIT JUDGES

                              (Filed : September 20, 2005)
                              _______________________

                                      OPINION
                              _______________________

PER CURIAM

      Appellant Colin Reid appeals from the denial of a petition for habeas corpus under

28 U.S.C. § 2241. Reid’s petition challenges his conviction and must be brought under

28 U.S.C. § 2255. Thus, because the appeal presents no substantial question, we will

summarily affirm. See L.A.R. 27.4.

      Reid, a Jamaican national confined at FCI-Allenwood at the time of filing this
action, is currently serving a five-year federal sentence for possession with the intent to

distribute a controlled substance. On May 3, 2005, Reid filed a § 2241 petition alleging

due process and equal protection violations for the denial of his rights under the Vienna

Convention on Consular Relations, Dec. 24, 1969, art. 36, 21 U.S.T. 77. The District

Court ruled that Reid’s petition could not be brought under § 2241 because § 2255 is the

exclusive means by which a federal prisoner can challenge his conviction. The Court

then dismissed the petition without prejudice for Reid to file a § 2255 motion. Reid

appeals.1

       A § 2255 motion is the presumptive means for a federal prisoner to challenge the

fact or duration of a conviction or sentence, unless such a motion would be “inadequate

or ineffective to test the legality of his detention.” Okereke v. United States, 307 F.3d

117, 120 (3d Cir. 2002); 28 U.S.C. § 2255 ¶ 5. A § 2255 motion is inadequate or

ineffective only when “some limitation of scope or procedure” prevents a movant from

receiving an adjudication of his claim. Cradle, 290 F.3d at 538. Section 2255 is not

“inadequate or ineffective” merely because the sentencing court previously denied relief

or because the gatekeeping provisions of § 2255 make it difficult to pursue a successive

motion. Id. at 539; see also In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997).

       Reid argues that because he challenges official actions at the time of his arrest, he



       1
          We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over the District Court’s legal conclusions and apply a clearly erroneous standard to its
factual findings. See Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir.
2002).
is not challenging his conviction. However, an assertion that his conviction should be

reversed because he was denied rights under the Vienna Convention is a classic example

of a challenge to a conviction. Further, we note that Reid now is likely time-barred from

filing a § 2255 motion, see § 2255 ¶ 6, but his failure to take advantage of federal habeas

relief within the appropriate time does not make § 2255 inadequate or ineffective. See

Cradle, 290 F.3d at 539.

       Thus, no substantial question is presented with respect to whether the District

Court erred in dismissing the petition. Accordingly, the District Court’s order will be

affirmed.
