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


8-3-2005

Strope v. Warden Schuylkill
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2283




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"Strope v. Warden Schuylkill" (2005). 2005 Decisions. Paper 741.
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CPS-297                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 05-2283
                                   ________________

                                ISAAC LEROY STROPE,

                                                   Appellant

                                              v.

                             WARDEN, FCI SCHUYLKILL
                                ________________

                     On Appeal From the United States District Court
                         For the Middle District of Pennsylvania
                                (D.C. Civ. No. 04-cv-01846)
                      District Judge: Honorable Richard P. Conaboy
                                    ________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   July 8, 2005

                 Before: ALITO, McKEE and AMBRO, Circuit Judges

                                   ________________

                                       OPINION
                                   ________________

PER CURIAM.

       Appellant Isaac Strope, an inmate at the Federal Correctional Institution

at Schuylkill in Minersville, Pennsylvania, appeals pro se an order from 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. Strope is serving 240 months imprisonment
imposed by the District Court for the Middle District of Pennsylvania after being

convicted by a jury for numerous drug-related charges, possession of a firearm, and using

and carrying a firearm during and in relation to a drug trafficking offense.

       Strope appealed his conviction, but we affirmed. See United States v. Strope, C.A.

No. 93-7165, cert. denied, 512 U.S. 1226 (1994). In 1997, Strope filed a motion pursuant

to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence in which he challenged

only the conviction for using or carrying a firearm in relation to a drug trafficking crime,

see 18 U.S.C. § 924(c), contending that pursuant to Bailey v. United States, 516 U.S. 137

(1995), he did not use the firearm within the meaning of the statute. The District Court

denied the motion. Strope appealed, but we denied a certificate of appealability. See

C.A. No. 98-7005.

       In 2004, Strope filed a § 2241 petition, again contending that his conviction and

sentence are invalid under Bailey. The District Court found that Strope’s petition falls

under § 2255, and § 2255 is not “inadequate or ineffective” merely because the

sentencing court did not grant relief, the § 2255 limitations period expired, or Strope is

unable to meet the stringent gatekeeping requirements to file a successive § 2255 motion.

Accordingly, the District Court dismissed the § 2241 petition for lack of jurisdiction.

Strope file a motion for reconsideration, contending that the District Court

mischaracterized his § 2241 petition as a successive § 2255 motion. The District Court

denied the motion for essentially the same reasons set forth in its original memorandum.

       Summary action is warranted when “no substantial question” is presented by the


                                              2
appeal. See 3d Cir. LAR 27.4; Cradle v. United States ex rel. Miner, 290 F.3d 536, 539

(3d Cir. 2002). After a careful review of the record, we will summarily affirm.

          We agree with the District Court that Strope’s claim falls within the purview of

§ 2255. A federal prisoner’s challenge to the legality of his conviction and sentence must

be raised in a § 2255 motion, except where the remedy under § 2255 would be

“inadequate or ineffective.” 28 U.S.C. § 2255; see In re Dorsainvil, 119 F.3d 245, 249

(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 wrongful detention

claim.” Cradle, 290 F.3d at 538.

          We also agree with the District Court that Strope has not shown that § 2255 is

“inadequate or ineffective” under the circumstances. Although Bailey held that “use” of a

firearm for purposes of § 924(c) requires active employment of the weapon, Bailey, 516

U.S. at 143, Strope’s reliance on Bailey is unavailing as the Supreme Court has also held

that the “carrying” a firearm for purposes of § 924(c) applies to a person who knowingly

possesses and conveys firearms in a vehicle, including in the glove compartment. See

Muscarello v. United States, 524 U.S. 125, 139 (1998). Thus, Strope has not shown that

there has been an intervening change in substantive law since his conviction that negated

the criminal nature of the conduct for which he was convicted. See Dorsainvil, 119 F.3d

at 251.

          Therefore, the District Court properly determined that it lacked jurisdiction over


                                                3
Strope’s claims. See id. at 249. Strope’s available avenue to seek relief is by filing a

motion with the Court of Appeals for the Third Circuit for permission to file a second or

successive § 2255 motion. Although Strope may face substantive and procedural hurdles

in presenting his claim in a § 2255 motion, that alone does not render a § 2255 motion an

“inadequate or ineffective” remedy. See id. at 251.

       In conclusion, because no substantial question is presented on appeal, we will

affirm the District Court’s judgment.




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