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


5-9-2006

Davis v. Congress of US
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5533




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"Davis v. Congress of US" (2006). 2006 Decisions. Paper 1139.
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HPS-57 (April 2006)                                     NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       NO. 05-5533


                              BRIAN ANTHONY DAVIS,
                                        Appellant

                                             vs.

                   U.S. CONGRESS; WARDEN JAMES SHERMAN



                     On Appeal From the United States District Court
                        For the Western District of Pennsylvania
                             (W.D. Pa. Civ. No. 04-00265E)
                      District Judge: Honorable Sean McLaughlin


 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   April 21, 2006
    Before: SCIRICA, CHIEF JUDGE, WEIS AND GARTH, CIRCUIT JUDGES
                               (Filed: May 9, 2006)


                                         OPINION


PER CURIAM.

              Brian Anthony Davis, a federal prisoner currently incarcerated at FCI-

McKean, appeals pro se from an order of the United States District Court for the Western

District of Pennsylvania dismissing his habeas corpus petition for lack of jurisdiction. In

1994, Davis was convicted by a Texas jury of possession with intent to distribute cocaine

                                             1
base and conspiracy. Davis was sentenced to life imprisonment for the cocaine

conviction and, concurrently, to five years for conspiracy. Davis’s convictions and

sentences were affirmed on direct appeal. In 1997, Davis filed a motion to vacate

sentence under 28 U.S.C. § 2255, raising ineffective assistance of counsel claims. The

sentencing court denied that motion, and Davis’s request for a certificate of appealability

was denied by the Fifth Circuit Court of Appeals.

              In 2004, Davis filed a habeas corpus petition pursuant to 28 U.S.C. § 2241

in the District Court, challenging his convictions and sentences on due process and equal

protection grounds. Davis also asserted a claim based on Blakely v. Washington, 542

U.S. 296, 303-04 (2004), which held that the State of Washington’s determinate

sentencing scheme violated the Sixth Amendment right to a jury trial by permitting the

imposition of sentence enhancements based on facts found by a judge, using a less

stringent standard of proof than that used by a jury.1 Over Davis’s filed objections, the

District Court adopted the Magistrate Judge’s Report and Recommendation and dismissed

Davis’s § 2241 petition for lack of jurisdiction.



              We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. After a



              1
                Since Davis filed his petition, the Supreme Court decided United States v.
Booker, 543 U.S. 220, 243-44 (2005), which applied the Blakely rule to the federal
Sentencing Guidelines, making them advisory rather than mandatory. As Booker is the
more appropriate precedent for a federal sentencing challenge, we will refer to Davis’s
claim as arising under “Blakely/ Booker.”

                                              2
careful review of the record, we conclude that the appeal presents “no substantial

question.” We will, therefore, summarily affirm the District Court’s judgment pursuant to

Third Cir. LAR 27.4 and I.O.P. 10.6.

              Section 2255 is the presumptive means for a federal prisoner to challenge

his sentence or conviction. Davis v. United States, 417 U.S. 333, 343 (1974). We have

held that a federal prisoner can seek collateral relief via habeas corpus under § 2241 in the

rare situation where § 2255's scope or procedure makes it “inadequate or ineffective” to

challenge a conviction or sentence. See In re Dorsainvil, 119 F.3d 245, 248 (3d Cir.

1997). However, this “safety-valve” provision of § 2255 applies only in narrow

circumstances. See id. at 252. Section 2255 is not “inadequate or ineffective” merely

because the petitioner was denied relief in a previous § 2255 proceeding or is unable to

meet the stringent gatekeeping requirements of § 2255. See Cradle v. United States ex

rel. Miner, 290 F.3d 536, 538-39 (3d Cir. 2002) (per curiam).

              Davis contends that his equal protection and due process challenges focus

on Congress’s legislative action in passing the laws under which he was convicted and

sentenced, rather than on his particular convictions and sentences. See Objections to

Report and Recommendation at 3. Such claims, Davis argues, are not cognizable in a

motion filed under § 2255 and must be brought via § 2241. See id. Alternatively, Davis

asserts that his claims challenge the execution of his sentence, as opposed to its

imposition, thereby making § 2241 appropriate. See id. at 2.

              Notwithstanding the sweeping language in his constitutional arguments,

                                              3
Davis’s claims clearly embody the “essence of habeas corpus,” as they attack the legality

of his custody and seek to secure his immediate release. See Preiser v. Rodriguez, 411

U.S. 475, 484 (1973). Further, as the District Court observed, Davis’s claims challenge

the validity and imposition of his sentence, rather than the manner in which it is being

carried out, making them inappropriate for § 2241. Cf. Coady v. Vaughn, 251 F.3d 480,

485-86 (3d Cir. 2001). Finally, we agree with the District Court that Davis is not entitled

to use § 2241 as a vehicle for his Blakely/ Booker claim merely because he would be

barred from raising such a claim in a second § 2255 motion. See Cradle, 290 F.3d at 538

(“[i]t is the inefficacy of the remedy, not the personal inability to use it, that is

determinative”).2

               For these reasons, we agree with the District Court’s refusal to entertain

Davis’s petition. We will, therefore, summarily affirm the District Court’s judgment.

Davis’s motion for the appointment of counsel is denied.




               2
                Davis’s Blakely/ Booker claim also falls outside the “safety-valve”
provision of § 2255, because neither Blakely nor Booker de-criminalized the conduct
underlying Davis’s convictions. See Okereke v. United States, 307 F.3d 117, 120 (3d Cir.
2002).

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