Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
10-19-2006
Stevens v. Lindsay
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2547
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Recommended Citation
"Stevens v. Lindsay" (2006). 2006 Decisions. Paper 311.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/311
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APS-350 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
NO. 06-2547
________________
LUVOYDA A. STEVENS,
Appellant
v.
CAMERON LINDSAY, Warden
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 06-CV-00831)
District Judge: Honorable A. Richard Caputo
____________________________________
Submitted For Possible Summary Action
Under Third Circuit LAR 27.4 and I.O.P. 10.6
September 28, 2006
BEFORE: SLOVITER, McKEE and FISHER, CIRCUIT JUDGES
(Filed: October 19, 2006)
_______________________
OPINION
_______________________
PER CURIAM
Luvoyda Stevens appeals from an order of the United States District Court for the
Middle District of Pennsylvania (“Middle District”), which dismissed his habeas petition
he filed pursuant to 28 U.S.C. § 2241. For the reasons that follow, we will affirm.
Stevens was convicted of two counts in a twenty-nine count indictment in the
United States District Court for the District of New Jersey (“trial court”) following a
guilty plea, and was sentenced to 210 months on Count One and 120 months on Count
Twenty-Eight to run concurrently. Stevens did not file a direct appeal. He filed a motion
pursuant to 28 U.S.C. § 2255 in the trial court in February 2005, which was dismissed as
time-barred.
In April 2006, Stevens filed the instant § 2241 petition in the Middle District,
challenging his judgment of conviction and sentence, because he believed Count One was
dismissed at his sentencing. He argued that § 2255 is inadequate and ineffective, because
he did not learn that Count One was dismissed until he received his sentencing transcript.
The District Court dismissed the petition, finding that whether Stevens had attempted to
file a second or successive § 2255 motion and been denied, or whether he was assuming
he would be unable to file a second or successive motion, § 2255 was not inadequate or
ineffective simply because Stevens could not meet the statute’s gate-keeping
requirements.
We agree with the District Court that Stevens cannot proceed under § 2241 but
must instead use § 2255. Section 2241 may be substituted for § 2255 only in exceptional
2
circumstances such as those faced by the petitioner in In re Dorsainvil, 119 F.3d 245 (3d
Cir. 1997), who “was in the ‘unusual position’ of a prisoner with no prior opportunity to
challenge his conviction for a crime that an intervening change in substantive law could
negate with retroactive application.” Okereke v. United States, 307 F.3d 117, 120 (3d
Cir. 2002). Stevens, by contrast, does not maintain that the actions for which he was
convicted have since been decriminalized. Moreover, he could have raised his claims on
direct appeal or in a timely § 2255 motion. Because a § 2255 motion must be filed in the
sentencing court, and because Stevens filed his § 2241 petition in a court that did not
sentence him, the District Court correctly dismissed his petition without prejudice for lack
of jurisdiction. After considering Appellee’s motion for summary affirmance and
Stevens’ opposition thereto, we find that the appeal does not present a substantial issue
and we grant the appellee’s motion for summary affirmance.1
1
Stevens’ motion for appointment of counsel is denied as moot.
3