HLD-040 (November 2010) NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-3482
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ARNOLD REEVES,
Appellant,
v.
UNITED STATES OF AMERICA
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 09-cv-06351)
District Judge: Honorable Jerome B. Simandle
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Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
November 30, 2010
Before: MCKEE, Chief Judge, ALDISERT and WEIS, Circuit Judges
(Opinion filed March 9, 2011)
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OPINION
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PER CURIAM.
Appellant Arnold Reeves pleaded guilty in 1996 in the United States
District Court for the Southern District of New York to conspiracy to distribute and to
possess with the intent to distribute phencyclidine (PCP), in violation of 21 U.S.C. §§
812, 814(a)(1), and 841(b)(1)(A). He also agreed to forfeit certain real and personal
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property, and he agreed to provide substantial assistance to the Government. Ultimately,
the Government declined to move for a downward departure on his behalf. Claiming that
he had provided enough assistance, Reeves moved to compel the Government to submit a
§ 5K1.1 letter and a section 3553(e) motion for a downward departure. See U.S.S.G. §
5K1.1; 18 U.S.C. § 3553(e). After hearings, the sentencing court denied the motion and
imposed a term of imprisonment of 240 months, to be followed by 10 years of supervised
release. Reeves appealed, arguing that the Government acted wrongfully and in bad
faith, and thus he should be granted a downward departure. The arguments were rejected
by the United States Court of Appeals for the Second Circuit, which affirmed on July 17,
2002. See United States v. Reeves, 296 F.3d 113, 117 (2d Cir. 2002) (district court’s
factual finding that government’s dissatisfaction with Reeves’ assistance was honest is
not clearly erroneous and thus Reeves has failed to meet his burden of showing
prosecutorial bad faith).
In October, 2002, Reeves filed a motion to vacate sentence pursuant to 28
U.S.C. § 2255 in the Southern District of New York, in which he raised numerous
ineffective assistance of counsel claims. The sentencing court denied the section 2255
motion. See United States v. Reeves, 2005 WL 3288012 (S.D.N.Y. December 2, 2005).
Thereafter, Reeves filed two additional – and unsuccessful – collateral challenges to his
conviction and sentence in the Southern District of New York, see Reeves v. United
States, 2008 WL 4921764 (S.D.N.Y. October 3, 2008); Reeves v. United States, 2010
WL 3791967 (S.D.N.Y. September 23, 2010).
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At issue now, on December 17, 2009, and while incarcerated at the
Federal Correctional Institution at Fort Dix, New Jersey, Reeves filed a petition for writ
of habeas corpus, 28 U.S.C. § 2241, in the United States District Court for the District of
New Jersey. Reeves argued that his sentence should be vacated because the Double
Jeopardy Clause was violated by the forfeiture, and because the Government breached
the plea agreement. In an order entered on July 7, 2010, the District Court dismissed the
petition for lack of jurisdiction and declined to transfer it in the interest of justice to the
Second Circuit Court of Appeals.
Reeves appeals. Our Clerk granted him leave to appeal in forma pauperis,
and advised him that the appeal was subject to summary dismissal under 28 U.S.C. §
1915(e)(2)(B) or summary affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. He
was invited to submit argument in writing, and he has done so. We have reviewed his
submissions.
We have jurisdiction under 28 U.S.C. § 1291. Under Third Circuit LAR
27.4 and I.O.P. 10.6, we may summarily dispose of an appeal when it clearly appears that
no substantial question is presented by the appeal. Our review is plenary. United States
v. Thompson, 70 F.3d 279, 280-81 (3d Cir. 1995).
We will summarily affirm the order of the District Court because no
substantial question is presented by this appeal. A motion to vacate sentence pursuant to
28 U.S.C. § 2255 is the exclusive means to challenge collaterally a federal conviction or
sentence. See Davis v. United States, 417 U.S. 333, 343-44 (1974). Under the explicit
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terms of 28 U.S.C. § 2255, unless a section 2255 motion would be “inadequate or
ineffective,” even a habeas corpus petition cannot be entertained by a court. See
Application of Galante, 473 F.2d 1164, 1165 (3d Cir. 1971). Section 2255 is not
inadequate or ineffective simply because Reeves is prevented by the gatekeeping
requirements of the statute, see 28 U.S.C. § 2255(h), from litigating his claims in a
second or successive section 2255 motion.1 “It is the efficacy of the remedy, not the
personal inability to use it, that is determinative.” Cradle v. United States ex rel. Miner,
290 F.3d 536, 538-39 (3d Cir. 2002) (per curiam) (citing Garris v. Lindsay, 794 F.2d 722,
727 (D.C. Cir. 1986).
Moreover, the safety valve provided under 28 U.S.C. § 2255 is narrow, see
In re: Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). In Dorsainvil, we held that a
petitioner could seek relief under 28 U.S.C. § 2241 in an unusual situation where he was
being detained for conduct that subsequently was rendered non-criminal by an
intervening Supreme Court decision, see id. at 252, and he had had no prior opportunity
to present his claim. Reeves does not allege that his controlled substances conduct is now
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Section 2255 provides that:
(h) A second or successive motion must be certified as provided in section 2244
by a panel of the appropriate court of appeals to contain –
(1) newly discovered evidence that, if proven and viewed in light of the evidence
as a whole, would be sufficient to establish by clear and convincing evidence that
no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h).
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regarded as non-criminal, and he has had many prior opportunities to raise his claims.
Dorsainvil thus does not apply in his case. Cf. Okereke v. United States, 307 F.3d 117,
120 (3d Cir. 2002) (Apprendi dealt with sentencing and did not render conspiracy to
import heroin, the crime for which Okereke was convicted, not criminal). As such, the
District Court was without jurisdiction to entertain Reeves’ federal habeas corpus
petition. We further agree with the District Court that the interest of justice, see 28
U.S.C. § 1631, does not require transfer of the petition to the Second Circuit Court of
Appeals for treatment as an application to file a second or successive section 2255
motion. Reeves’ claims do not involve a new rule of constitutional law made retroactive
to cases on collateral review or newly discovered evidence. See 28 U.S.C. § 2255(h).
For the foregoing reasons, we will summarily affirm the order of the
District Court dismissing Reeves’ habeas corpus petition for lack of jurisdiction.
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