Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
11-5-2007
Black v. Warden Lewisburg
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3211
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Black v. Warden Lewisburg" (2007). 2007 Decisions. Paper 263.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/263
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
BLD-7 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3211
________________
RODERICK BLACK,
Appellant
v.
WARDEN, USP LEWISBURG
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 07-cv-00805)
District Judge: Honorable James M. Munley
_______________________________________
Submitted on Cross-Motions for Summary Action
Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
October 12, 2007
Before: MCKEE, RENDELL and SMITH, Circuit Judges
Filed: November 5, 2007
_______________________
OPINION
_______________________
PER CURIAM
This is an appeal from the district court’s dismissal of Roderick Black’s petition
for a writ of habeas corpus pursuant to 28 U.S.C § 2241. We will summarily affirm. See
I.O.P. 10.6.
Black is a federal prisoner incarcerated at the United States Penitentiary in
Lewisburg. On September 2, 1994, Black was convicted of various drug trafficking
offenses, in the United States District Court for the Eastern District of North Carolina.
United States v. Black, 97 F.3d 1449 (4th Cir. 1996). He was also convicted of violating
18 U.S.C. 924(c)(1), which criminalizes using or carrying a firearm during a drug
trafficking crime, and engaging in a continuing criminal enterprise (CCE) in violation of
21 U.S.C. 848. Id. Black was sentenced to consecutive terms of life in prison and sixty
months. Id. The United States Court of Appeals for the Fourth Circuit affirmed the
judgment of the district court on September 18, 1996. Id.
In early 2001, Black filed a 28 U.S.C. § 2255 motion with the sentencing court,
which denied the motion as untimely. United States v. Black, 19 Fed. Appx. 78 (4th Cir.
2001). He pursued an appeal, and on September 19, 2001, the Fourth Circuit agreed with
the district court’s conclusion that the § 2255 motion was untimely, denied a certificate of
appealability and dismissed the appeal.
On May 2, 2007, Black filed a petition for writ of habeas corpus under 28 U.S.C.
§ 2241 in the Middle District of Pennsylvania to challenge his 1994 conviction. The
district court dismissed the petition on the ground that Black could only challenge his
conviction via a § 2255 motion. Black timely appealed and both sides have filed motions
with this Court for summary action.
We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a).
We exercise plenary review over the district court’s legal conclusions and apply a clearly
-2-
erroneous standard to its factual findings. See Cradle v. United States ex rel. Miner, 290
F.3d 536, 538 (3d Cir. 2002). Upon review, we agree with the district court’s dismissal.
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, 249-251 (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, 290 F.3d at 538.
On appeal, Black argues that his 28 U.S.C. § 924(c) conviction must be vacated in
light of the Supreme Court’s decision in Bailey v. United States, 516 U.S. 137 (1995) and
Bousley v. United States, 532 U.S. 614 (1998).1 The Fourth Circuit, however, found
Black’s Bailey claim untimely under the applicable one-year period of limitation. Section
2255 is not inadequate or ineffective merely because the petitioner is unable to meet
certain procedural requirements, such as the one-year period of limitation or the stringent
gatekeeping requirements for filing a second or successive petition. Cradle, 290 F.3d at
539. We agree with the district court that “to allow Black to file a habeas petition in the
1
In Bailey, the Court held that § 924(c)(1)’s “use” prong requires the Government
to show “active employment of the firearm.” In Bousley, the Court determined that the
Bailey decision applied retroactively. Bousley did not address whether a Bailey claim
could be brought in a § 2241 petition.
-3-
district of confinement asserting the same Bousley claim raised in previously
unsuccessful collateral attacks . . . would obliterate congressional attempts to promote
finality in federal criminal cases.”
Our decision in Dorsainvil created a narrow exception to the rule that a § 2255
petition must be used to challenge the validity of a federal sentence. Specifically, the
exception in Dorsainvil is limited to a prisoner in an “unusual position . . . who had no
earlier opportunity to challenge his conviction for a crime that an intervening change in
substantive law may negate . . . .” Dorsainvil, 199 F.3d at 251. Black brought his § 2255
petition in the sentencing court over four years after the Supreme Court decision in
Bailey. Thus, he does not fall within the ambit of Dorsainvil.
Black also attempts to rely on United States v. Amen, 831 F.2d 373 (2d Cir. 1987)
to attack his sentence. In Amen, the Second Circuit held that “because section 848
applies only to a person in charge of a CCE, one cannot incur liability for aiding and
abetting such a person.” Id. at 381. Black was convicted of engaging in a continuing
criminal enterprise and not aiding and abetting a CCE. In any event, this is also a claim
that Black had an opportunity to litigate in his previous § 2255 petition in the Fourth
Circuit. Black may not use a § 2241 petition to make an end run around § 2255’s
limitations on successive motions for relief.
Accordingly, for the reasons given, we will grant appellee’s motion for summary
action and affirm. See I.O.P. 10.6. Black’s motion for summary action is denied.
-4-
-5-