Robert Russell v. Warden Allenwood USP ( 2019 )

BLD-175 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 18-3639
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ROBERT P. RUSSELL,
Appellant
v.
WARDEN ALLENWOOD USP
__________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 16-cv-02149)
District Judge: John E. Jones, III
__________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
May 2, 2019
Before: AMBRO, KRAUSE and PORTER, Circuit Judges
(Opinion filed: May 10, 2019)
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OPINION*
_________
PER CURIAM
Robert P. Russell appeals from an order of the District Court denying his petition
for writ of habeas corpus, 28 U.S.C. § 2241. For the reasons that follow, we will
summarily affirm.
Russell was convicted in 1991 in the United States District Court for the Eastern
District of Virginia of first degree murder, in violation of 18 U.S.C. § 1111, and
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
sentenced to life imprisonment. The criminal judgment was affirmed on direct appeal by
the United States Court of Appeals for the Fourth Circuit, see United States v. Russell,
971 F.2d 1098 (4th Cir. 1992). The United States Supreme Court subsequently denied
certiorari, see United States v. Russell, 506 U.S. 1066 (1993). “Russell has since filed
over 35 motions, petitions and civil actions in various courts seeking relief from his
conviction, including motions under 28 U.S.C. § 2255 in his sentencing court and
applications with the Fourth Circuit under 28 U.S.C. §§ 2244 and 2255 to file additional
§ 2255 motions.” Russell v. Allenwood, 639 F. App’x 891, 892 (3d Cir. 2016). He has
also filed four habeas corpus petitions under § 2241 in this circuit. Id. (citing, in addition,
Russell v. Martinez, 325 F. App’x 45 (3d Cir. 2009); Russell v. Williamson, 198 F.
App’x. 164 (3d Cir. 2006); and Russell v. Pugh, 143 F. App’x. 408 (3d Cir. 2005)).
On October 25, 2016, Russell filed his fifth petition for writ of habeas corpus, 28
U.S.C. § 2241, in the United States District Court for the Middle District of
Pennsylvania, challenging his murder conviction. Russell claimed to have “new and
reliable evidence” that was not previously discovered by his trial counsel due to his
ineffective representation. This new evidence, Russell contended, shows that no crime
was committed. Moreover, he argues, the circumstances of his case make a motion under
28 U.S.C. § 2255 “inadequate or ineffective.” The Government answered the amended §
2241 petition, arguing that the District Court lacked jurisdiction to consider it. The
Magistrate Judge filed a Report and Recommendation, agreeing with the Government. In
an order entered on August 6, 2016, the District Court adopted the Magistrate Judge’s
constitute binding precedent.
2
report and dismissed Russell’s § 2241 petition for lack of jurisdiction. In an order
entered on October 10, 2018, the District Court denied Russell’s timely filed motion for
reconsideration.1
Russell appeals. We have jurisdiction under 28 U.S.C. § 1291.2 Our Clerk
advised the parties that we might act summarily to dispose of the appeal under Third Cir.
LAR 27.4 and I.O.P. 10.6. Russell has filed a motion for summary reversal.
We will summarily affirm the order of the District Court because no substantial
question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6, “Motions
pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal prisoners can
challenge their convictions or sentences[.]” Okereke v. United States, 307 F.3d 117, 120
(3d Cir. 2002). Section 2255(e) of title 28, also known as the “savings clause,” provides,
however, that an application for a writ of habeas corpus may proceed if “it ... appears that
the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of [a
prisoner’s] detention.” 28 U.S.C. § 2255(e). In In re: Dorsainvil, 119 F.3d 245, 251 (3d
Cir. 1997), we held that the District Court had jurisdiction to hear a federal prisoner’s
claim under § 2241 even though he did not meet the gatekeeping requirements of §
2255(h), where an intervening U.S. Supreme Court case rendered the conduct of which
he was convicted no longer criminal and where he did not have an earlier opportunity to
1
Russell filed a second motion for reconsideration, which the District Court treated as a
motion for clarification and granted to the extent that the Court’s order was amended to
read that the § 2241 petition was dismissed without prejudice to Russell’s right to seek
leave to file a second or successive § 2255 petition with the appropriate court of appeals.
2
A certificate of appealability is not required to appeal from the denial of a § 2241
3
present his claim. “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.” Cradle v. United States ex rel. Miner, 290 F.3d 536, 539 (3d Cir. 2002) (per
curiam). “It is the inefficacy of the remedy, not the personal inability to utilize it, that is
determinative.” Id. at 538.
Russell may not resort to the § 2241 remedy. He raises a claim that can be
brought in a second or successive § 2255 motion, provided that he meets the
requirements under § 2255(h) for doing so. Russell claims that he has newly discovered
evidence of his innocence, but Congress has provided a remedy for presenting such a
claim; a petitioner may bring a second or successive § 2255 motion if the appropriate
court of appeals certifies that the motion contains “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.” 28 U.S.C. § 2255(h)(1). The fact that the Fourth Circuit Court of
Appeals has already denied Russell’s motion to file a second or successive § 2255 motion
based on newly discovered evidence does not mean that § 2255 is inadequate or
ineffective. See Cradle, 290 F.3d at 539. Russell’s contentions in his motion for
summary reversal are meritless for the reasons we have already provided in Russell v.
petition. See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir. 2009).
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Allenwood, 639 F. App’x at 893-94. Accordingly, the District Court lacked jurisdiction
over Russell’s § 2241 petition and properly denied his motion for reconsideration.3
For the foregoing reasons, we will summarily affirm the order of the District Court
dismissing Russell’s § 2241 petition for lack of jurisdiction. Appellant’s motion for
summary reversal is denied.
3
We note that the Magistrate Judge considered whether the instant § 2241 petition was
an abuse of the writ. Accordingly, Russell is now on notice that any future § 2241
petitions raising the same claims may be subject to dismissal as an abuse of the writ.
5