Thibeau v. Miner , 235 F. App'x 905 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
6-6-2007
Thibeau v. Miner
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-5190
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Recommended Citation
"Thibeau v. Miner" (2007). 2007 Decisions. Paper 995.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/995
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CLD-239 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-5190
________________
MARK WAYNE THIBEAU,
Appellant
v.
JOHNATHAN C. MINER
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 06-cv-01925)
District Judge: Honorable A. Richard Caputo
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
Under Third Circuit LAR 27.4 and I.O.P. 10.6
May 17, 2007
Before: RENDELL, SMITH AND JORDAN, CIRCUIT JUDGES
(Filed June 6, 2007)
_______________________
OPINION
_______________________
PER CURIAM
Mark Wayne Thibeau appeals the District Court’s order dismissing his petition
filed pursuant to 28 U.S.C. § 2241. In 1999, Thibeau pled guilty to conspiracy to
distribute cocaine base in the District Court for the Western District of North Carolina
and was sentenced to 151 months in prison and five years of supervised release. He did
not appeal. Thibeau subsequently filed a motion pursuant to 28 U.S.C. § 2255, an
application for permission to file a second or successive § 2255 motion, and a petition
under § 2241. All were unsuccessful. Thibeau argued in the instant § 2241 petition that
his five-year term of supervised release was more than the three-year term allowed under
21 U.S.C. § 841(b)(1)(C). He requested that the District Court transfer the petition to the
District Court for the Western District of North Carolina. The District Court dismissed
the petition. Thibeau filed a timely notice of appeal, and we have jurisdiction under 28
U.S.C. § 1291.
The District Court did not err in dismissing Thibeau’s § 2241 petition. Thibeau
seeks to have the supervised release portion of his sentence corrected on the grounds that
it is in excess of the maximum authorized by statute; this falls clearly within 28 U.S.C. §
2255. Thibeau’s § 2241 petition may not be entertained unless a motion under § 2255 is
“inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255.
Previous unsuccessful § 2255 motions are not sufficient to show that a § 2255 motion is
inadequate or ineffective. Litterio v. Parker, 369 F.2d 395, 396 (3d Cir. 1966); see also In
re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). Moreover, we note that in his plea
agreement, Thibeau admitted that the amount of cocaine base involved was at least five
hundred grams. The penalty for offenses involving that amount of cocaine base is
provided by 21 U.S.C. § 841(b)(1)(A) which mandates a period of supervised release of
at least five years.
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Summary action is appropriate if there is no substantial question presented in the
appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by
the District Court, we will summarily affirm the District Court’s order. See Third Circuit
I.O.P. 10.6. Appellant’s motions for summary reversal are denied.
3