Gregory Berry v. Warden Fairton FCI ( 2020 )

*AMENDED DLD-172 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-3585
___________
GREGORY MAC DONALD BERRY,
Appellant
v.
WARDEN FAIRTON FCI
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. Civil Action No. 18-cv-16217)
District Judge: Honorable Noel L. Hillman
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
April 23, 2020
Before: RESTREPO, PORTER and SCIRICA, Circuit Judges
(Opinion filed: May 22, 2020)
_________
OPINION*
_________
PER CURIAM
Gregory Berry, a federal prisoner proceeding pro se, appeals an order of the
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
United States District Court for the District of New Jersey dismissing his petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241. We will affirm the judgment of the
District Court.
Berry was convicted after a jury trial in the United States District Court for the
Central District of California of child pornography charges. He received a sentence of
420 months in prison. The United States Court of Appeals for the Ninth Circuit affirmed,
rejecting Berry’s argument that the District Court erred in granting his request to
represent himself. United States v. Berry, 554 F. App’x. 574, 574-75 (9th Cir. 2014).
Berry filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255 raising,
among other things, a claim that the District Court denied his right to self-representation
by failing to afford him a hearing and to allow him to represent himself earlier. The
District Court ruled that Berry had procedurally defaulted this claim because he did not
raise it on direct appeal and denied his remaining claims. The Ninth Circuit Court of
Appeals denied Berry’s request for a certificate of appealability. The District Court also
denied Berry’s subsequent motion pursuant to Federal Rule of Civil Procedure 60(b) in
which he disputed its ruling on his self-representation claim, and the Court of Appeals
denied his request for a certificate of appealability. See United States v. Berry, C.D. Cal.
Crim. No. 2:09-cr-00831 and C.D. Cal. Civ. No. 2:15-cv-03523.
Berry then filed a habeas petition in the District Court in New Jersey pursuant to
§ 2241. In his amended petition, he raised the same denial of self-representation claim
that he brought in his § 2255 motion. He relied on the documents that he filed and the
arguments that he made in his § 2255 proceedings.
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The District Court granted Respondent’s motion to dismiss the habeas petition for
lack of jurisdiction. It explained that challenges to the legality of confinement should be
brought pursuant to § 2255, that Berry’s claim did not satisfy the exception that allows
such a claim to be brought under § 2241 where a § 2255 motion is “inadequate or
ineffective,” and that Berry sought to relitigate his earlier claim. This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over the District Court’s legal conclusion that it lacked jurisdiction. Cradle v. United
States, 290 F.3d 536, 538 (3d Cir. 2002) (per curiam).
“Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which
federal prisoners can challenge their convictions or sentences” on constitutional grounds.
Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). Although a petitioner may
challenge a conviction pursuant to § 2241 where a § 2255 motion would be “inadequate
or ineffective,” a § 2255 motion is inadequate or ineffective “only where the petitioner
demonstrates that some limitation of scope or procedure would prevent a § 2255
proceeding from affording him a full hearing and adjudication of his wrongful detention
claim.” Cradle, 290 F.3d at 538. See also In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.
1997) (§ 2255 is inadequate or ineffective in the unusual case where a prisoner had no
earlier opportunity to challenge his conviction for a crime that an intervening change in
law may negate).
Berry asserted in his § 2241 petition that § 2255 is inadequate or ineffective
because the sentencing court denied his claim and reversal of his conviction was required.
Section 2255, however, is not inadequate or ineffective because a sentencing court does
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not grant relief. Cradle, 290 F.3d at 539. Relying on Cardona v. Bledsoe, 681 F.3d 533
(3d Cir. 2012), Berry also argued below that he is challenging the execution of his
sentence and that such a challenge is permitted under § 2241. Federal prisoners may
challenge the execution of their sentences pursuant to § 2241, but such a challenge
concerns how the Bureau of Prisons is carrying out a sentencing judgment. Cardona, 681
F.3d at 536-37. To the extent Berry asserts a due process violation because his claim
falls within the plain language of § 2241, § 2255 provides that a § 2241 petition attacking
a conviction or sentence cannot be entertained unless a § 2255 motion would be
inadequate or ineffective. Cradle, 290 F.3d at 538. See also Bruce v. Warden Lewisburg
USP, 868 F.3d 170, 178 (3d Cir. 2017) (explaining that § 2255 replaced traditional
habeas relief under § 2241 for federal prisoners).
Accordingly, because this appeal does not raise a substantial question, we will
affirm the judgment of the District Court.1 Berry’s motion for appointment of counsel is
denied. To the extent Berry contends that counsel may be able to establish that he is
eligible to challenge his conviction under § 2241 in light of COVID-19, counsel is not
warranted as Berry already raised his claim under § 2255 and the sentencing court denied
relief.
1
When deciding not to transfer Berry’s petition to the sentencing court, the District Court
observed that he could file a second § 2255 motion in that court. We note that Berry
must satisfy the requirements of 28 U.S.C. §§ 2244 and 2255(h) before he can do so.
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