Norman Shaw, Jr. v. Warden Canaan USP , 710 F. App'x 63 ( 2018 )

BLD-099 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-3403
___________
NORMAN SHAW, JR.,
Appellant
v.
WARDEN CANAAN USP
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 3-17-cv-01826)
District Judge: Honorable James M. Munley
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
January 25, 2018
Before: RESTREPO, BIBAS and NYGAARD, Circuit Judges
(Opinion filed: January 29, 2018)
_________
OPINION*
_________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Norman Shaw, Jr., appeals pro se from an order of the United States District Court
for the Middle District of Pennsylvania dismissing his habeas petition filed pursuant to 28
U.S.C. § 2241. For the following reasons, we will summarily affirm the judgment of the
District Court. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
I.
In 2006, Shaw pleaded guilty in United States District Court for the District of
Kansas to two bank robbery offenses. He received a sentence of 165 months in prison.
That sentence came after the District Court determined that Shaw qualified as a career
offender under U.S. Sentencing Guidelines § 4B1.1 because he had at least two prior
felony convictions for crimes of violence.
As relevant here, in 2016, the United States Court of Appeals for the Tenth Circuit
granted Shaw permission to file a second or successive § 2255 motion following the
United States Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551
(2015), which held that the residual clause of the Armed Career Criminal Act was
unconstitutionally vague. The Kansas District Court denied Shaw’s corresponding
§ 2255 motion and dismissed a subsequent reconsideration motion. On November 30,
2017, the Tenth Circuit denied Shaw’s request for a certificate of appealability, stating
that Shaw’s sentencing challenge lacked arguable merit in light of United States v.
Beckles, 137 S. Ct. 886 (2017), which held that the advisory Guidelines are not subject to
a vagueness challenge under the Due Process Clause. See United States v. Shaw, -- F.
App’x --, 2017 WL 5900543, at *3 (10th Cir. Nov. 30, 2017) (non-precedential).
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While Shaw’s request for a certificate of appealability was pending before the
Tenth Circuit, Shaw filed two § 2241 petitions in the Middle District of Pennsylvania
seeking relief under Johnson. The District Court dismissed the first petition on the
ground that Shaw had not demonstrated that § 2255 was inadequate or ineffective, and
Shaw did not appeal. Some three months later, however, in October 2017, Shaw filed a
second § 2241 petition, again relying on Johnson while reframing his claim as one of
“actual/factual innocence.” The District Court again dismissed the petition, and Shaw
now appeals.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and our
review of the District Court’s dismissal of Shaw’s § 2241 petition is plenary. See Cradle
v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002) (per curiam). Section 2241 gives
federal district courts the power to grant a writ of habeas corpus to prisoners within their
jurisdiction who are “in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2241(c)(3). That said, “the usual avenue for federal
prisoners seeking to challenge the legality of their confinement” is through a motion filed
pursuant to 28 U.S.C. § 2255 in the court of conviction and sentencing. In re Dorsainvil,
119 F.3d 245, 249 (3d Cir. 1997). A petitioner otherwise required to rely on § 2255 may
pursue relief through § 2241 only if a § 2255 motion would be “inadequate or ineffective
to test the legality of his detention.” 28 U.S.C. § 2255(e).
We have so far applied that safety valve in the rare situation where a prisoner has
had no prior opportunity to challenge his conviction for actions that an intervening
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change in law has made non-criminal. Okereke v. United States, 307 F.3d 117, 120 (3d
Cir. 2002) (citing Dorsainvil, 119 F.3d at 251); see also Gardner v. Warden Lewisburg
USP, 845 F.3d 99, 103 (3d Cir. 2017). A § 2255 motion is not “inadequate or
ineffective” merely because the petitioner cannot meet the gatekeeping requirements of
§ 2255, see Okereke, 307 F.3d at 120, or because the sentencing court has denied relief,
see Cradle, 290 F.3d at 539. “It is the inefficacy of the remedy, not the personal inability
to use it, that is determinative.” Id. at 538-39.
III.
In this case, the District Court correctly dismissed Shaw’s petition. The Tenth
Circuit granted Shaw permission to raise his Johnson-based claim in a second or
successive § 2255 motion, which was considered and rejected on the merits, so he cannot
show that § 2255 is an inadequate or ineffective remedy for him to seek relief on that
claim. Shaw’s apparent attempt to modify his claim in this § 2241 petition does not
affect our conclusion. Moreover, as the Tenth Circuit determined, Johnson does not
provide Shaw with a basis for relief from his advisory Guidelines sentence in light of the
Supreme Court’s decision in Beckles.
IV.
For the reasons above, we will affirm the District Court’s order.
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