Frazier-El v. Bureau of Prisons , 376 F. App'x 164 ( 2010 )

HLD-096 (March 2010) NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-3914
CLINTON B. FRAZIER-EL,
Appellant
v.
BUREAU OF PRISONS, DEPARTMENT OF JUSTICE;
WARDEN GRONDOLSKY, FCI FORT DIX
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 1-09-cv-04121)
District Judge: Honorable Jerome B. Simandle
Submitted for Possible Summary Action Pursuant
to Third Circuit LAR 27.4 and I.O.P. 10.6
March 31, 2010
Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges
(Opinion filed: April 19, 2010)
OPINION
PER CURIAM.
Appellant Clinton B. Frazier-el was convicted following a jury trial in
United States District Court for the District of Maryland of possession of a firearm by a
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felon in violation of 18 U.S.C. § 922(g). He was sentenced as an armed career criminal,
pursuant to 18 U.S.C. § 924(e), to a term of imprisonment of 188 months. The judgment
of conviction and sentence was affirmed on appeal to the Fourth Circuit Court of
Appeals. See United States v. Frazier-el, 204 F.3d 553 (4th Cir.), cert. denied, 531 U.S.
994 (2000). Frazier-el filed a timely motion to vacate sentence under 28 U.S.C. § 2255,
which was denied on the merits. See Frazier-el v. United States, 2002 WL 32356686 (D.
Md. June 17, 2002). The Fourth Circuit denied his application for a certificate of
appealability with respect to that section 2255 motion, and dismissed his appeal. See
United States v. Frazier-el, 46 Fed. Appx. 168 (4th Cir. 2002).
Frazier-el, who is incarcerated at the Federal Correctional Institution in Fort
Dix, New Jersey, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241in United States District Court for the District of New Jersey in August of 2009. In it he
challenged his sentence on the ground that, as a Sheik in the Moorish Science Temple, he
was authorized to possess a firearm. Moreover, his Public Defender would not allow him
to put on a defense he thought was in his best interest, and, furthermore, the federal
district court lacked jurisdiction to convict him. In an order entered on September 17,
2009, the District Court dismissed the habeas corpus petition for lack of jurisdiction.
Frazier-el appeals. Our Clerk advised him that his appeal was subject to
summary affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. He was invited to
submit argument in writing, and he has done so. We have reviewed that submission.
We have jurisdiction under 28 U.S.C. § 1291. Under Third Circuit LAR
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27.4 and I.O.P. 10.6, we may summarily dispose of an appeal when it clearly appears that
no substantial question is presented by the appeal. Our review is plenary. United States
v. Thompson, 70 F.3d 279, 280-81 (3d Cir. 1995).
We will summarily affirm the order of the District Court because no
substantial question is presented by this appeal. As explained by the District Court, a
motion to vacate sentence pursuant to 28 U.S.C. § 2255 is the exclusive means to
challenge collaterally a federal conviction or sentence. See Davis v. United States, 417
U.S. 333, 343-44 (1974). Under the explicit terms of 28 U.S.C. § 2255, unless a section
2255 motion would be “inadequate or ineffective,” even a habeas corpus petition cannot
be entertained by a court. See Application of Galante, 473 F.2d 1164, 1165 (3d Cir.
1971). Section 2255 is not inadequate or ineffective simply because Frazier-el is
prevented by the gatekeeping requirements of the statute, see 28 U.S.C. § 2255(h), from
litigating his current claims.1 “It is the efficacy of the remedy, not the personal inability
to use it, that is determinative.” Cradle v. United States ex rel. Miner, 290 F.3d 536, 538-
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Section 2255 provides that:
(h) A second or successive motion must be certified as provided in section
2244 by a panel of the appropriate court of appeals to contain –
(1) newly discovered evidence that, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have found the
movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h).
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39 (3d Cir. 2002) (per curiam) (citing Garris v. Lindsay, 794 F.2d 722, 727 (D.C.
Cir.1986). Moreover, the safety valve provided under 28 U.S.C. § 2255 is narrow, see In
re: Dorsainvil, 119 F.3d 245 (3d Cir. 1997), and would not apply here because Frazier-el
does not claim that he was convicted for conduct later deemed to be noncriminal by a
change in law. See id. at 251.
For the foregoing reasons, we will summarily affirm the order of the
District Court dismissing Frazier-el’s habeas corpus petition for lack of jurisdiction.
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