Johnson v. Apker , 142 F. App'x 604 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
8-4-2005
Johnson v. Apker
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2258
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Recommended Citation
"Johnson v. Apker" (2005). 2005 Decisions. Paper 731.
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CPS-277 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 05-2258
________________
EDWARD R. JOHNSON,
Appellant
v.
CRAIG APKER, Warden
________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 05-cv-00284)
District Judge: Honorable James F. McClure, Jr.
________________
Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
JUNE 23, 3005
Before: ALITO, MCKEE and AMBRO, Circuit Judges
(Filed: August 4, 2005)
________________
OPINION
________________
PER CURIAM.
Edward R. Johnson, a federal inmate at LSCI-Allenwood in Pennsylvania, appeals
from the dismissal of his petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2241. Johnson was convicted in the United States District Court for the Eastern District
of Virginia of possessing more than five grams of crack cocaine with intent to distribute
and sentenced to 292 months in prison. The United States Court of Appeals for the
Fourth Circuit affirmed the conviction and sentence, and the Supreme Court denied
certiorari in 1997. In 2001, the sentencing court denied Johnson’s motion pursuant to 28
U.S.C. § 2255. Johnson did not appeal that decision.
Johnson then filed a § 2241 proceeding in the District Court for the Middle District
of Pennsylvania, arguing that his conviction and sentence violate the rule announced in
Apprendi v. New Jersey, 530 U.S. 466 (2000). The District Court dismissed the § 2241
petition because Johnson failed to make the requisite showing that his remedy by § 2255
motion is “inadequate or ineffective” such that he can raise an Apprendi claim in a § 2241
petition. This Court affirmed, noting that the proper course was for Johnson to pursue an
application with the Fourth Circuit for permission to file a second or successive § 2255
motion. See Johnson v. Gerlinski, C.A. No. 01-4039 (3d Cir. Apr. 29, 2002) (non-
precedential, per curiam opinion).
Johnson next filed such an application with the Fourth Circuit, and permission to
file a second § 2255 motion was denied in November 2004. In January 2005, Johnson
then filed this § 2241 proceeding, again claiming that his conviction and sentence violate
Apprendi and that his remedy by § 2255 motion is inadequate or ineffective. The District
Court denied relief, noting that Johnson’s remedy by § 2255 motion is not inadequate or
ineffective merely because he has been denied permission to pursue a second § 2255
motion. The District Court added that Johnson’s petition must fail even if he were to
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invoke the subsequent decisions in Blakely v. Washington, 124 S. Ct. 2531 (2004), and
United States v. Booker, 125 S. Ct. 738 (2005), as those cases are not retroactively
applicable on collateral review. Johnson timely filed this appeal.1
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the
District Court’s decision is de novo. United States v. Cleary, 46 F.3d 307, 309-10 (3d
Cir. 1995). The appellee has filed a motion for summary affirmance, which should be
granted if the appeal presents “no substantial question,” 3d Cir. LAR 27.4 and I.O.P. 10.6.
After a careful review of the record, we will grant the appellee’s motion and summarily
affirm the District Court’s judgment.
As the District Court correctly explained, Johnson’s challenge to the validity of his
conviction and sentence based on Apprendi and its progeny must be raised in a § 2255
motion, not under § 2241. A § 2255 motion is inadequate and ineffective “only if it can
be shown that some limitation of scope or procedure would prevent a Section 2255
proceeding from affording the prisoner a full hearing and adjudication of his claim of
wrongful detention.” United States v. Brooks, 230 F.3d 643, 648 (3d Cir. 2000); see In re
Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997) (holding that “a prisoner who had no earlier
opportunity to challenge his conviction for a crime that an intervening change in
substantive law may negate” can proceed under § 2241). Johnson has made no such
1
Johnson also filed a timely motion for reconsideration, which the District Court
denied by Order entered May 2, 2005. Because Johnson has not timely filed an appeal or
an amended notice of appeal from the May 2 Order, we lack jurisdiction to review the
denial of his motion for reconsideration. See Fed. R. App. P. 4(a)(4)(B)(ii).
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showing here. Indeed, we have held that § 2255 is not “inadequate or ineffective” for
prisoners seeking to raise an Apprendi claim in a § 2241 proceeding. Okereke v. United
States, 307 F.3d 117, 120-21 (3d Cir. 2002). Moreover, it is settled that mere inability to
satisfy the stringent requirements for filing a second or successive § 2255 motion does not
establish that § 2255 is inadequate or ineffective. In re Dorsainvil, 119 F.3d at 251.
Johnson contends that his claim is actually premised upon the due process
requirements of In re Winship, 397 U.S. 358 (1970), and not the Apprendi line of case,
and as such, he should be permitted to seek relief under § 2241. See Mtn. for Summary
Reversal at 3. Regardless of which Supreme Court precedent Johnson purports to rely
upon, the fact remains that his remedy by § 2255 motion is not an inadequate or
ineffective means to test the legality of his detention, and thus § 2241 is unavailable.
In short, because this appeal presents no substantial question, we will summarily
affirm the District Court’s judgment. Johnson’s Motion for Summary Reversal is denied.
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