Dutton v. Warden, FCI Estill , 37 F. App'x 51 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LARRY DEAN DUTTON, 
Petitioner-Appellant,
v.  No. 01-6811
WARDEN, FCI Estill,
Respondent-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Dennis W. Shedd, District Judge.
(CA-00-2630-0-19BD)
Argued: January 22, 2002
Decided: February 22, 2002
Before WILKINSON, Chief Judge, and MOTZ and
GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Cheryl Johns Sturm, Chadds Ford, Pennsylvania, for
Appellant. Barbara Murcier Bowen, Assistant United States Attorney,
Columbia, South Carolina, for Appellee. ON BRIEF: Scott N.
Schools, United States Attorney, Columbia, South Carolina, for
Appellee.
2 DUTTON v. WARDEN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Petitioner, Larry Dutton, is currently serving a sentence of two
hundred thirty five (235) months for unlawful possession of a firearm
by a convicted felon in violation of Title 18 U.S.C. § 922(g)(1) and
18 U.S.C. § 924(e). The sentence was imposed on Dutton in the West-
ern District of North Carolina. Dutton has previously filed a motion
to vacate, set aside or correct his sentence pursuant to 28 U.S.C.
§ 2255. The motion was denied by the district court, and we affirmed.
United States v. Dutton, No. 98-6719 (Sept. 4, 1998).
The current action was filed by Dutton in the U.S. District Court
for the District of South Carolina, pursuant to 28 U.S.C. § 2241. Dut-
ton alleged that his sentence is in violation of the International Cove-
nant on Civil and Political Rights ("ICCPR"), and in violation of the
holding of Apprendi v. United States, 500 U.S. 466 (2000). On the
government’s motion to dismiss, a magistrate judge recommended
that the petition be dismissed without prejudice because the petition
was, in actuality, a second motion under § 2255. Dutton had not
sought permission to file a second motion under § 2255, and was
therefore barred from filing the motion. The magistrate judge declined
to recommend transferring the case to the Western District of North
Carolina because Dutton acknowledged that he had not sought per-
mission to file the motion. The district court adopted the recommen-
dation without change. Dutton filed a timely appeal. We affirm.
The district court dismissed the petition on a purely legal basis. Our
review is de novo. United States v. Brown, 155 F.3d 431, 434 (4th
Cir. 1998); Ashe v. Styles, 67 F.3d 46, 50 (4th Cir. 1996).
As the district court found, Dutton’s petition was a challenge to the
validity of his sentence and was therefore required to be brought pur-
suant to § 2255. In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997).
DUTTON v. WARDEN 3
Because Dutton has previously filed a § 2255 motion, the district
court correctly concluded that he cannot file a second motion unless
he obtains our permission to do so. Id. We have not granted permis-
sion.
Dutton seeks to avoid the requirements of § 2255 by arguing that
his remedy under § 2255 is "inadequate or ineffective" to test the
legality of his sentence, and that he is therefore statutorily entitled to
bring his claim pursuant to § 2241. See 28 U.S.C. § 2255. Dutton
states that he is being held in violation of the International Conven-
tion on Civil and Political Rights (ICCPR), and that because § 2241
but not § 2255 includes language regarding violations of "treaties," he
must be permitted to file his petition pursuant to § 2241. 28 U.S.C.
§ 2241(c)(3). This argument is plainly meritless. Regardless of
whether claims based on violations of treaties must be brought pursu-
ant to § 2241, Dutton’s claim fails because the ICCPR is not privately
enforceable. To be privately enforceable, a treaty must either be self-
executing or Congress must have passed implementing legislation.
Goldstar (Panama) S.A. v. United States, 967 F.2d 965, 968 (4th Cir.
1992); Breard v. Pruett, 134 F.3d 615, 622 (4th Cir. 1998) (Butzner,
J., concurring). To the extent that a treaty has not been implemented
and is not self-executing, habeas relief is not available. Garza v. Lap-
pin, 253 F.3d 918, 924 (7th Cir. 2001). The ICCPR is not self-
executing, nor has it been implemented by Congress. See Senate Res-
olution of Ratification of International Covenant on Civil and Politi-
cal Rights, 102d Cong., 138 Cong. Rec. S4781-01, S4784 (April 2,
1992) (noting that "the United States declares that the provisions of
Articles 1 through 27 of the [ICCPR] are not self-executing"); Senate
Committee on Foreign Relations Report on the International Cove-
nant on Civil and Political Rights, S. Exec. Rep. 102-23, 31 I.L.M.
645, 652, 657 (1992) (stating "[t]he Administration proposed a decla-
ration stating that Articles 1 through 27 of the [ICCPR] are not self-
executing" and that "[t]he intent is to clarify that the [ICCPR] will not
create a private cause of action in U.S. courts"); see also Igartua de
la Rosa v. United States, 32 F.3d 8, 10 n.1 (1st Cir. 1994) (holding
that ICCPR is not privately enforceable).
Dutton also makes an equally meritless argument based on
Apprendi v. New Jersey, 530 U.S. 466 (2000). We have held that
Apprendi is not retroactive to cases on collateral review. United States
4 DUTTON v. WARDEN
v. Sanders, 247 F.3d 139 (4th Cir. 2001). And it certainly has not
been made retroactive by the Supreme Court, which is what would be
required in this case, since this is Dutton’s second motion. 18 U.S.C.
§ 2255. See Sanders, 247 F.3d at 146 n.4. Finally, we reject Dutton’s
argument that his sentence violates 28 U.S.C. § 994(s). This claim
relates to the validity of his sentence and is therefore governed by
§ 2255. "It is beyond question that § 2255 is not inadequate or inef-
fective merely because an individual is unable to obtain relief under
that provision." In re Jones, 226 F.3d 328, 333 (4th Cir. 2000).
For the above stated reasons, the district court properly dismissed
Dutton’s petition. The judgment of the district court is affirmed.
AFFIRMED