Antoine Norman v. Troy Levi , 305 F. App'x 820 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-16-2009
Antoine Norman v. Troy Levi
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2944
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"Antoine Norman v. Troy Levi" (2009). 2009 Decisions. Paper 2016.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/2016
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
HLD-27 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2944
___________
ANTOINE NORMAN,
Appellant
vs.
TROY LEVI
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 08-cv-00962)
District Judge: Honorable R. Barclay Surrick
___________________________________
Submitted for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
December 31, 2008
Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges
Opinion Filed: January 16, 2009
_________
OPINION
_________
PER CURIAM.
Antoine Norman, who is currently confined at the Federal Detention Center
in Philadelphia, appeals an order of the United States District Court for the Eastern
District of Pennsylvania denying his habeas petition filed pursuant to 28 U.S.C. § 2241.
1
We will affirm.
On September 7, 2007, following a jury trial in the United States District
Court for the Eastern District of Pennsylvania, Norman was found guilty of conspiracy,
bank fraud, aggravated identity theft, and aiding and abetting. While a sentencing hearing
was originally scheduled for December 6, 2007, various joint defense motions for
continuances were filed and granted. A hearing to determined the amount of loss
attributable to each of the co-defendants was held on June 12, 2008, and Norman’s
sentencing was eventually set for September 10, 2008. In the meantime, on February 25,
2008, Norman filed a habeas petition pursuant to 28 U.S.C. § 2241, wherein he claimed
that his Fourth and Fourteenth Amendment rights were violated by the Postal Inspector’s
investigation, which, he argued, was unlawful and without jurisdiction given the
Inspector’s alleged failure during the Grand Jury proceedings to establish a nexus
between the crimes and the U.S. mail. In an Order entered on June 20, 2008, the District
Court denied the petition after concluding that Norman’s claims were not cognizable
under § 2241. Norman now appeals that decision.
We have jurisdiction over the appeal under 28 U.S.C. §§ 1291 and 2253(a),
and exercise plenary review over the District Court’s denial of the petition. See Okereke
v. United States, 307 F.3d 117, 119 (3d Cir. 2002).
As properly noted by the District Court, a challenge to a federal conviction
must generally be brought in a motion to vacate under 28 U.S.C. § 2255. See Okereke,
2
307 F.3d at 120. A prisoner may proceed under § 2241 only where the remedy provided
under § 2255 is inadequate or ineffective to test the legality of his confinement. See §
2255(e); Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). See
also Padilla v. United States, 416 F.3d 424, 425-426 (5th Cir. 2005) (“Section 2255 ... is
the appropriate remedy for ‘errors that occurred at or prior to the sentencing.’”)(internal
citations omitted). “A § 2255 motion would be inadequate or ineffective only if the
petitioner can show that a limitation of scope or procedure would prevent a § 2255
proceeding from affording him a full hearing and adjudication of his wrongful detention
claim.” Okereke, 307 F.3d at 120. Because Norman failed to show that a § 2255 motion
would be an inadequate or ineffective vehicle to present the constitutional claims raised in
his petition once his direct appeal had been disposed of, we conclude that the District
Court correctly determined that those claims should not be entertained in the context of a
§ 2241 proceeding. See, e.g., United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997)
(delay in submitting a § 2255 motion until the direct appeal is resolved does not render §
2255 inadequate or ineffective).
Moreover, we find no fault with the District Court’s failure to construe
Norman’s petition as a motion under § 2255, as such a motion would have been subject to
dismissal as premature because it was filed prior to sentencing and direct appeal. See
Kapral v. United States, 166 F.3d 565, 570-72 (3d Cir. 1999)(a collateral attack is
generally inappropriate if the possibility of direct review remains open).
3
Accordingly, for the foregoing reasons, we conclude that the appeal does
not present a substantial question. We will therefore summarily affirm the judgment of
the District Court. See Third Circuit LAR 27.4 and I.O.P. 10.6.
4