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


10-24-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3224




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HPS-151        (September 2005)                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                   NO. 05-3224
                      ____________________________________

                            JAMES LEINENBACH,
                                             Appellant
                                    vs.
                    TROY WILLIAMSON, Warden, FCI Allenwood
                      _____________________________________

                           On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                              (D.C. Civ. No. 04-cv-02442)
                    District Judge: Honorable William W. Caldwell
                                ____________________
 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  September 23, 2005
          Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges

                                 (Filed October 24, 2005)


                               _______________________

                                        OPINION

                               _______________________

PER CURIAM.

              James Leinenbach, a federal prisoner, appeals pro se the order of the United

States District Court for the Middle District of Pennsylvania dismissing his habeas

petition filed pursuant to 28 U.S.C. § 2241. For the reasons that follow, we will



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summarily affirm the judgment of the District Court.

              Leinenbach was convicted in 1994 by a jury in the United States District

Court for the Eastern District of Pennsylvania of conspiracy to manufacture and distribute

methamphetamine, manufacturing methamphetamine, and possession of

methamphetamine with intent to distribute. Leinenbach was sentenced to a collective

term of 27 years imprisonment. This Court affirmed Leinenbach’s conviction and

sentence on direct appeal, and the United States Supreme Court denied Leinenbach’s

petition for writ of certiorari. In 1997, Leinenbach filed a motion pursuant to 28 U.S.C.

§ 2255 which was denied. This Court declined to issue Leinenbach a certificate of

appealability, Leinenbach v. United States, C.A. No. 02-3693, and the United States

Supreme Court again declined to grant Leinenbach a petition for writ of certiorari.

              Leinenbach, who is incarcerated at FCI-Allenwood in White Deer,

Pennsylvania, filed the underlying § 2241 petition in the District Court for the Middle

District of Pennsylvania in November 2004. In his § 2241 petition, Leinenbach raised

challenges to his conviction and sentence under Apprendi v. New Jersey, 530 U.S. 466

(2000), Blakely v. Washington, 542 U.S. 296 (2004), and the International Covenant on

Civil and Political Rights (“ICCPR”). On June 17, 2005, the District Court dismissed

Leinenbach’s § 2241 petition, concluding that Leinenbach had not shown that § 2255 is

inadequate or ineffective such that he should be allowed to proceed under § 2241. This

timely appeal followed.



                                             2
              A § 2255 motion is the presumptive means by which a federal prisoner can

challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343

(1974). A federal prisoner may proceed under § 2241 only if the remedy provided by

§ 2255 is inadequate or ineffective to test the legality of his detention. See 28 U.S.C.

§ 2255; In re Dorsainvil, 119 F.3d 245, 249-51 (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 claims.” Cradle v. United States ex rel. Miner, 290 F.3d 536, 538

(3d Cir. 2002). Section 2255 is not inadequate or ineffective merely because a prior

motion has been unsuccessful or the petitioner is unable to meet the stringent gatekeeping

requirements for filing a second or successive § 2255 motion. Okereke v. United States,

307 F.3d 117, 120-21; see also Cradle, 290 F.3d at 539. Rather, § 2255 is inadequate or

ineffective, for example, in the “rare situation” where an intervening change in law makes

the crime for which the petitioner was convicted “non-criminal.” Okereke, 307 F.3d at

120.

              We agree with the District Court that Leinenbach’s situation is not the rare

one rendering § 2255 inadequate or ineffective. Specifically, we have held that § 2255 is

not inadequate or ineffective for a federal prisoner seeking to raise an Apprendi claim in a

§ 2241 proceeding. Okereke v. United States, 307 F.3d 117, 120-21. Like Apprendi, the

Supreme Court’s holding in Blakely (and moreover, United States v. Booker, 125 S. Ct.



                                              3
738 (2005)),1 did not change the substantive law as to the elements of the offenses for

which Leinenbach was convicted. Although Leinenbach may face substantive and

procedural hurdles to presenting these claims in a § 2255 motion, that alone does not

render a § 2255 motion an inadequate or ineffective remedy.

              Likewise, we agree with the District Court’s disposition of Leinenbach’s

ICCPR claim. Treaty violations may be raised in § 2255 motion. See Wesson v. U.S.

Penitentiary Beaumont, Texas, 305 F.3d 343, 348 (5th Cir. 2002) (citing Davis v. United

States, 417 U.S. 333, 344 (1974) for the proposition that relief under § 2255 extends to

treaties). In any event, however, habeas relief is not available for a violation of the

ICCPR because it is not self-executing. See, e.g., Bannerman v. Snyder, 325 F.3d 722,

724) (6th Cir. 2003); Wesson, 305 F.3d at 348; United States ex rel. Perez v. Warden, 286

F.3d 1059, 1063 (8th Cir. 2002).

              Finally, Leinenbach’s assertion of actual innocence does not alter our

conclusion that the District Court properly dismissed his § 2241 petition. Leinenbach’s

argument is one of legal innocence, not factual innocence, based on the erroneous

premise that Apprendi, Blakely, and Booker apply retroactively to cases on collateral

review. See Lloyd v. United States, 407 F.3d 608, 613-15 (3d Cir. 2005) (holding that




              1
                As the District Court correctly noted, because Leinenbach is a federal
prisoner sentenced under the United States Sentencing Guidelines, his claim is better
expressed in terms of Booker. Of course, this makes no difference to the outcome of
Leinenbach’s appeal.

                                              4
Booker, which applied the Blakely rule to the federal sentencing guidelines, is not

retroactively applicable to cases on collateral review); United States v. Swinton, 333 F.3d

481, 491 (3d Cir. 2003) (holding that Apprendi is not retroactively applicable to cases on

collateral review). In short, Leinenbach’s actual innocence argument is unavailing in this

proceeding.

              Because this appeal presents “no substantial question,” 3d Cir. LAR 27.4

and I.O.P. 10.6, we will summarily affirm the District Court’s June 17, 2005, order.




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