Paul Johnson v. William Scism , 464 F. App'x 87 ( 2012 )


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  •                                                                  NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 11-1386
    ___________
    PAUL N. JOHNSON,
    Appellant
    v.
    WILLIAM A. SCISM, Warden of L.S.C.I.-Allenwood
    ____________________________________
    On Appeal from the United States District Court
    for the Middle District of Pennsylvania
    (D.C. Civil Action No. 10-cv-02353)
    District Judge: Honorable John E. Jones III
    ____________________________________
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    May 10, 2012
    Before: SCIRICA, GREENAWAY, JR., and VAN ANTWERPEN, Circuit Judges
    (Opinion filed: May 14, 2012 )
    ___________
    OPINION
    ___________
    PER CURIAM
    Paul Johnson appeals the District Court’s order dismissing his petition filed
    pursuant to 28 U.S.C. § 2241. For the reasons below, we will affirm the District Court’s
    order.
    1
    In 1996, Paul Johnson pleaded guilty to conspiracy to distribute cocaine, cocaine
    base, and marijuana. In his plea agreement, he admitted that the equivalent amount of
    cocaine for which he was responsible was between 500 and 2,000 grams. Johnson was
    sentenced as a career offender to 275 months in prison. We affirmed his conviction and
    sentence on appeal. In 1998, Johnson filed an unsuccessful motion to vacate his sentence
    pursuant to 28 U.S.C. § 2255. In November 2010, Johnson filed a petition pursuant to 28
    U.S.C. §2241. After the District Court dismissed the petition for lack of jurisdiction,
    Johnson filed a notice of appeal.
    We have jurisdiction under 28 U.S.C. § 1291, and exercise plenary review over
    the District Court’s legal conclusions. Cradle v. United States, 
    290 F.3d 536
    , 538 (3d
    Cir. 2002). In his § 2241 petition, Johnson argued that he was actually innocent of being
    a career offender. He contended that under Begay v. United States, 
    553 U.S. 137
    (2008),
    his state court conviction for terroristic threats did not qualify as a predicate offense. He
    also asserted that his sentence should have expired due to a reinterpretation of 21 U.S.C.
    § 846 because the identity of the drug involved in his federal offense was not found by
    the grand jury to be an element of the offense.
    Under the explicit terms of § 2255, a § 2241 petition cannot be entertained by a
    court unless a § 2255 motion would be “inadequate or ineffective.” 
    Cradle, 290 F.3d at 538
    . We have explained that
    2
    [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 wrongful
    detention claim. It is the inefficacy of the remedy, not the personal inability to use
    it, that is determinative. Section 2255 is not inadequate or ineffective merely
    because the sentencing court does not grant relief, the one-year statute of
    limitations has expired, or the petitioner is unable to meet the stringent
    gatekeeping requirements of the amended § 2255.
    
    Id. at 538-39 (citations
    omitted). Johnson has not shown that a § 2255 motion would be
    inadequate or ineffective. He argues that our decision in In re Dorsainvil, 
    119 F.3d 245
    (3d Cir. 1997), allows him to proceed via § 2241 because he did not have an earlier
    opportunity to raise this claim. In Dorsainvil, we held that a defendant may proceed via
    § 2241 when a subsequent statutory interpretation renders the defendant’s conduct no
    longer criminal. 
    Id. at 251. Here,
    Johnson is challenging his designation as a career
    offender. Thus, he does not fall within the exception created in Dorsainvil and may not
    proceed under § 2241. See Okereke v. United States, 
    307 F.3d 117
    , 120–21 (3d Cir.
    2002) (holding that a petitioner is barred from proceeding under § 2241 because his
    argument was based on sentencing and did not render the crime he was convicted of not
    criminal).
    For the above reasons, we will affirm the District Court’s judgment.
    3
    

Document Info

Docket Number: 11-1386

Citation Numbers: 464 F. App'x 87

Judges: Greenaway, Per Curiam, Scirica, Van Antwerpen

Filed Date: 5/14/2012

Precedential Status: Non-Precedential

Modified Date: 8/5/2023