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Turner v. Apker , 133 F. App'x 849 ( 2005 )


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  •                                                                                                                            Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
for the Third Circuit
6-10-2005
Turner v. Apker
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1141
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Recommended Citation
"Turner v. Apker" (2005). 2005 Decisions. Paper 1029.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1029
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-1141
________________
QUINCY TURNER,
Appellant
v.
CRAIG APKER, Warden
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 04-cv-01251)
District Judge: Honorable Thomas I. Vanaskie
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
June 10, 2005
BEFORE: SLOVITER, BARRY and FISHER, CIRCUIT JUDGES
(Filed June 10, 2005)
_______________________
OPINION
_______________________
PER CURIAM
Quincy Turner, pro se, appeals from two orders 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 lack of jurisdiction and denying his motion for reconsideration. We
will affirm.
In 1996, in the United States District Court for the Eastern District of
Pennsylvania, Quincy Turner was convicted of conspiracy and several counts of cocaine
base distribution in violation of
    21 U.S.C. §§ 841
    (a)(1) and 841(b)(1)(A)(iii). He was
sentenced to two hundred thirty-five months imprisonment, five years supervised release
and a five hundred dollar special assessment. On appeal, this Court affirmed his
conviction and sentence. See C.A. No. 96-1660. In 1998, Turner filed a motion to
vacate, set aside or correct his sentence pursuant to
    28 U.S.C. § 2255
    , which was denied
on the merits. In 2001, he filed an application to file a second or successive § 2255
motion, which was also denied. See C.A. No. 01-2442.
In June 2004, Turner, who is incarcerated at L.S.C.I. Allenwood, filed the instant
petition pursuant to
    28 U.S.C. § 2241
     in the Middle District of Pennsylvania. In his
petition he claims that he is “actually innocent” of distributing the quantity of cocaine that
was the basis for his sentence and that he should have been sentenced based on the jury’s
finding of an indeterminate amount. The Magistrate Judge recommended that the petition
be dismissed for lack of jurisdiction because the relief Turner seeks is only available
through a § 2255 motion. Turner filed a response to the Magistrate Judge’s Report and
Recommendation in which he agreed that the Middle District lacked jurisdiction and
requested a transfer to the Eastern District. The District Court adopted the Magistrate
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Judge’s Report and Recommendation and dismissed Turner’s petition. Turner filed
“objections” to the District Court’s order, which the District Court construed as a motion
for reconsideration and denied. Turner appealed. We have jurisdiction pursuant to
    28 U.S.C. § 1291
    . Our review of the District Court’s dismissal of a § 2241 petition is
plenary. See Bakhtriger v. Elwood,
    360 F.3d 414
    , 417 (3d Cir. 2004).
We agree with the District Court that it lacked jurisdiction to consider Turner’s §
2241 petition. A § 2241 petition may not be used to challenge a conviction or sentence
unless a § 2255 motion is “inadequate or ineffective to test the legality of [the] detention.”
See
    28 U.S.C. § 2255
    . The nature of Turner’s claim places his petition squarely within
the scope of § 2255 and, therefore, renders his § 2241 petition, in effect, a second or
successive § 2255 motion subject to the gate-keeping restrictions of the Antiterrorism and
Effective Death Penalty Act (“AEDPA”). The mere fact that AEDPA may prevent his
use of § 2255 does not render it inadequate. See Cradle v. United States ex rel. Miner,
    290 F.3d 536
    , 538-39 (3d Cir. 2002).
Our review of the District Court’s denial of Turner’s motion for reconsideration is
for abuse of discretion. See Penn W. Assoc. v. Cohen,
    371 F.3d 118
    , 124 (3d Cir. 2004).
Turner presented nothing persuasive to controvert the District Court’s dismissal of his
petition and merely sought to rehash the same issues. The District Court, therefore,
properly denied his motion for reconsideration.
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Accordingly, we will affirm the District Court’s orders dismissing Turner’s § 2241
petition and denying his motion for reconsideration.
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