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


10-2-2006

Russell v. Williamson
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2261




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Recommended Citation
"Russell v. Williamson" (2006). 2006 Decisions. Paper 374.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/374


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CPS-338                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                        No. 06-2261


                               ROBERT PETER RUSSELL,
                                                Appellant,

                                             v.

                            TROY WILLIAMSON, Warden
                       ____________________________________

                     On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                              (D.C. Civ. No. 05-cv-02294)
                        District Judge: Honorable Malcolm Muir
                             __________________________

           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                  September 21, 2006

              Before: BARRY, SMITH AND NYGAARD, CIRCUIT JUDGES


                                  (Filed: October 2, 2006)
                                   _________________

                                       OPINION
                                   _________________


PER CURIAM

       Appellant Robert Peter Russell was convicted in United States District Court for

the Eastern District of Virginia of first degree murder, in violation of 18 U.S.C. § 1111, in
connection with the death of his U.S. Marine Corps officer wife. He was sentenced to life

in prison. In 1992, the Court of Appeals for the Fourth Circuit affirmed in United States

v. Russell, 971 F.2d 1098 (4th Cir. 1992), and the U.S. Supreme Court denied certiorari.

Russell subsequently filed a motion in the trial court for a new trial pursuant to Fed. R.

Crim. Pro. 33 based on newly discovered evidence, or, in the alternative, to vacate his

conviction and sentence pursuant to 28 U.S.C. § 2255. The trial/sentencing court denied

that motion. Russell then filed an application for authorization to file a second or

successive section 2255 motion, which was denied by the Fourth Circuit in March 2001.

       Russell, an inmate at the U.S. Penitentiary at Allenwood, next filed a petition for

writ of habeas corpus in U.S. District Court for the Middle District of Pennsylvania, in

which he claimed that he was actually innocent. It was denied by the District Court, and

we affirmed in July 2005, holding that Russell’s claim of actual innocence “amount[ed] to

little more than an end run around the Fourth Circuit Court of Appeals' decision denying

his application for authorization to file a second § 2255 motion based on claims of newly

discovered evidence, which was filed nearly two years after final resolution of the FOIA

litigation that uncovered such evidence.” Russell v. Pugh, 143 Fed. Appx. 408, 410 (3d

Cir. July 12, 2005).

       Several months later, Russell filed the instant petition for writ of habeas corpus in

United States District Court for the Middle District of Pennsylvania, claiming that the

trial court lacked Article III jurisdiction, because his wife’s body was never found within

the territorial jurisdiction of the United States. The District Court dismissed the petition

                                              2
in an order entered on January 10, 2006, and the court denied a timely motion for

reconsideration in an order entered on February 15, 2006. Russell appealed, and our

Clerk granted him leave to appeal in forma pauperis.

       We will dismiss the appeal under 28 U.S.C. § 1915(e)(2)(B)(i). An appeal is

frivolous when it lacks an arguable basis either in law or fact. Neitzke v. Williams, 490

U.S. 319, 325 (1989). As we previously explained, a motion to vacate sentence pursuant

to 28 U.S.C. § 2255 is the exclusive means for a federal prisoner to challenge the validity

of his conviction or sentence, unless such a motion would be inadequate or ineffective to

test the legality of the detention. Okereke v. United States, 307 F.3d 117, 120 (3d

Cir.2002); 28 U.S.C. § 2255. Section 2255 is not inadequate or ineffective merely

because a prior motion has been unsuccessful or a petitioner is unable to meet the

stringent gatekeeping requirements for filing a second or successive section 2255 motion.

Id. at 120-21; Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538-39 (3d Cir. 2002). The

safety valve provided under 28 U.S.C. § 2255 is narrow and is unavailable to bring a

challenge to the jurisdiction of the district court, see Fed. R. Civ. Pro. 12(b)(3)(B), like

Russell’s, which could have been raised earlier either on direct appeal or in his first

section 2255 motion. See In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997).

       We will dismiss the appeal as frivolous.




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