Abdel-Whab v. United States , 175 F. App'x 528 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
3-27-2006
Abdel-Whab v. USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4026
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"Abdel-Whab v. USA" (2006). 2006 Decisions. Paper 1380.
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BPS-161 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4026
USAMA S. ABDEL-WHAB,
Appellant
v.
UNITED STATES OF AMERICA
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 05-cv-01636)
District Judge: Honorable James F. McClure, Jr.
Submitted Under 28 U.S.C. § 1915(e)(2)(B)
March 16, 2006
BEFORE: RENDELL, AMBRO and BECKER, Circuit Judges
(Filed : March 27, 2006)
OPINION
PER CURIAM
Appellant Usama Abdel Whab (a/k/a/ Usama Abdel Wahab) appeals from the
District Court’s order dismissing his complaint seeking a declaratory judgment pursuant
to 28 U.S.C. §§ 2201, 2202. Adbel Whab is currently detained by the Bureau of
Immigration and Customs Enforcement at the Pike County Correctional Facility in
Pennsylvania. Essentially, his complaint seeks a ruling that his conviction in the
Southern District of New York is invalid and must be vacated. We note that his
numerous challenges to his conviction and sentence under 28 U.S.C. § 2241 and 28
U.S.C. § 2255 have been unsuccessful.
It is well established that habeas corpus is the exclusive avenue by which a person
in custody may challenge the fact or duration of a conviction or sentence. See Heck v.
Humphrey, 512 U.S. 477, 481-82 (1994). Accordingly, the Declaratory Judgment Act
cannot operate as a substitute or alternative remedial basis to 28 U.S.C. § 2255. See
United States v. Gutierrez, 116 F.3d 412, 415 (9th Cir. 1997); Chatman-Bey v.
Thornburgh, 864 F.2d 804, 808-10 (D.C. Cir. 1988) (en banc); Forsythe v. Ohio, 333 F.2d
678, 679 (6th Cir. 1964). Thus, we will dismiss the appeal pursuant to 28 U.S.C. §
1915(e)(2)(B)(i).
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