Mark Grapes v. Sauers , 514 F. App'x 105 ( 2013 )


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  • GLD-096                                                       NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 12-3993
    ___________
    MARK GRAPES,
    Appellant
    v.
    WARDEN SAUERS
    ____________________________________
    On Appeal from the United States District Court
    for the Middle District of Pennsylvania
    (D.C. Civil No. 3-12-cv-01442)
    District Judge: Honorable Robert D. Mariani
    ____________________________________
    Submitted for Possible Summary Action
    Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
    January 17, 2013
    Before: FUENTES, FISHER and ROTH, Circuit Judges
    (Opinion filed: February 28, 2013)
    _________
    OPINION
    _________
    PER CURIAM
    Mark Grapes, proceeding pro se, appeals the United States District Court for the
    Middle District of Pennsylvania’s order dismissing Grapes’s petition for writ of habeas
    corpus pursuant to 
    28 U.S.C. § 2241
    . Because this appeal does not present a substantial
    1
    question we will summarily affirm for principally the same reasons as given in the
    District Court’s order.
    I.
    In 2005, Grapes pled guilty to distribution of methamphetamine pursuant to 
    21 U.S.C. § 841
    (a)(1) and use, carry, and possession of a firearm in relation to a drug
    trafficking crime pursuant to 
    18 U.S.C. § 924
    (c)(1). In October 2006, the United States
    District Court for the Northern District of West Virginia sentenced Grapes to 60 months
    for the distribution charge and to 87 months for the firearm charge, which were to run
    consecutively, for a total of 147 months in prison. Grapes did not file a direct appeal nor
    a motion pursuant to 
    28 U.S.C. § 2255
    . Grapes did file a motion in the District Court
    requesting sentencing transcripts in July 2007. In June 2009, the District Court denied
    the motion requesting sentencing transcripts because neither an appeal nor a § 2255
    motion was pending and Grapes provided no reason why he requested the transcripts.
    In October 2010, Grapes filed a motion pursuant to Rule 60(b)(6) of the Federal
    Rules of Civil Procedure requesting that the District Court modify his sentence to make
    the 60 months and 87 months prison terms run concurrently rather than consecutively.
    The District Court denied the Rule 60(b)(6) motion. Grapes appealed the District Court’s
    order denying his motion and in January 2011 the United States Court of Appeals for the
    Fourth Circuit affirmed the decision.
    In July 2012, Grapes filed a petition for writ of habeas corpus pursuant to 
    28 U.S.C. § 2241
     in the United States District Court for the Middle District of Pennsylvania.
    In his petition, Smith argued that he was actually innocent of the firearm offense because
    2
    there was no evidence that the firearm, found behind a seat in Grapes’s vehicle, was
    actively employed in furtherance of his drug trafficking offense. Grapes also argued that
    the District Court for the Northern District of Virginia rendered § 2255, which has a one
    year limitation period, inadequate or ineffective because the court took almost two years
    to rule on his motion requesting sentencing transcripts and he could not file a § 2255
    motion without the transcripts.
    The District Court denied Grapes’s petition for lack of jurisdiction because Grapes
    improperly challenged his conviction and sentence under § 2241. The District Court
    determined that Grapes had not demonstrated that § 2255 afforded an inadequate or
    ineffective remedy that would permit Grapes to challenge his conviction and sentence
    through § 2241. Grapes appealed and the Clerk alerted the parties that the appeal was
    being considered for possible summary action.
    II.
    We have jurisdiction pursuant to 
    28 U.S.C. §§1291
     and 2253(a). We “exercise
    plenary review over the District Court’s legal conclusions and apply a clearly erroneous
    standard to its findings of facts.” O’Donald v. Johns, 
    402 F.3d 172
    , 173 n.1 (3d Cir.
    2005). We may summarily affirm if the appeal presents no substantial question. See 3d
    Cir. LAR 27.4; I.O.P. 10.6.
    III.
    Upon review, we conclude that the District Court properly dismissed Grapes’s
    § 2241 petition for lack of jurisdiction.
    3
    A federal prisoner’s challenge to the legality of his conviction and sentence must
    be raised in a § 2255 motion. See 
    28 U.S.C. §2255
    (a). A § 2255 motion must be filed in
    the sentencing court, which in this case would be the District Court for the Northern
    District of West Virginia. Id. However, there is an exception to the requirement that a
    conviction or sentence be challenged under § 2255 where the remedy would be
    “inadequate or ineffective.” 
    28 U.S.C. § 2255
    (e); see In re Dorsainvil, 
    119 F.3d 245
    , 249
    (3d Cir. 1997). This occurs “only where the petitioner demonstrates that some limitation
    of scope or procedure would prevent” the petitioner from receiving adequate adjudication
    of his claims. Cradle v. U.S. ex rel. Miner, 
    290 F.3d 536
    , 538 (3d Cir. 2002). The
    remedy’s inefficacy, rather than a prisoner’s inability to use it, is determinative. 
    Id.
     This
    exception is extremely narrow and applies only in rare circumstances. See, e.g.,
    Dorsainvil, 
    119 F.3d at 251-52
    . The fact that the one year period of limitation for Grapes
    to file a § 2255 motion has run does not render § 2255 inadequate or ineffective. Cradle,
    
    290 F.3d at 539
    .
    We agree with the District Court that Grapes has not shown that his claims could
    not have been raised earlier. Although Grapes argued that the almost two-year pendency
    of his motion requesting sentencing transcripts prohibited him from filing a direct appeal
    or timely § 2255 motion, he has not shown what claims he can make today that he could
    not have made during the one year limitation period of § 2255. We also agree with the
    District Court that Grapes has not established that he acted diligently in pursuing his
    claims. In sum, Grapes cannot show that his lack of sentencing transcripts entitles him to
    use the safety valve provided by § 2255(e). See Dorsainvil, 
    119 F.3d at 251
    .
    4
    Further, we agree with the District Court that Grapes’s claim of actual innocence
    does not entitle him to use the safety valve exception. His claim relied on the United
    States Supreme Court’s holding in Bailey v. United States, in which the Court interpreted
    § 924(c)(1) to require “active employment of the firearm by the defendant” in order to
    support a conviction. 
    516 U.S. 137
    , 142 (1995). In In re Dorsainvil, the petitioner
    argued that his conduct was made noncriminal in light of Bailey, and given his inability
    to proceed under § 2255 we held that he could use § 2241 to challenge his conviction for
    a crime that an intervening change in the substantive law may have negated. Dorsainvil,
    
    119 F.3d at 251
    . Unlike the petitioner in Dorsainvil, Grapes does not rely on an
    intervening change in law to argue that his conduct is noncriminal; Bailey was decided
    well before Grapes’s conviction, sentencing, and § 2255’s one-year limitation period
    expired. His failure to raise his claim on direct appeal or pursuant to a § 2255 motion
    does not mean that he lacked an earlier opportunity to challenge his conviction and
    sentence on the ground now asserted.
    IV.
    In short, Grapes did not show that § 2255 is “inadequate or ineffective.”
    Accordingly, the District Court did not err in dismissing his § 2241 petition. We will
    affirm the District Court’s judgment. See 3d Cir. LAR 27.4; I.O.P. 10.6.
    5
    

Document Info

Docket Number: 12-3993

Citation Numbers: 514 F. App'x 105

Judges: Fuentes, Fisher, Roth

Filed Date: 2/28/2013

Precedential Status: Non-Precedential

Modified Date: 10/19/2024