Harris v. Romine , 77 F. App'x 568 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
9-11-2003
Harris v. Romine
Precedential or Non-Precedential: Non-Precedential
Docket No. 01-3580
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-3580
GEORGE HARRIS,
Appellant
v.
DON ROM INE, Warden,
U.S.P. Lewisburg, USA
____________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Civ. No. 00-cv-01490)
District Judge: Honorable James M. Munley
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
April 1, 2002
Before: SLOVITER, AMBRO, and W EIS, Circuit Judges.
(Filed: September 11, 2003)
____________
OPINION
WEIS, Circuit Judge.
In 1988, a jury in the United States District Court for the Eastern District of
Virginia found George Harris guilty of engaging in a continuing criminal enterprise
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(“CCE”) in violation of 21 U.S.C. § 848, 28 counts of distributing cocaine in violation of
21 U.S.C. § 841, four counts of unlawfully using a communication facility to facilitate
drug-trafficking in violation of 21 U.S.C. § 843(b), and two counts of interstate travel in
aid of racketeering in violation of 18 U.S.C. § 1952(a)(3). A conviction for conspiracy in
violation of 21 U.S.C. § 846 was vacated on motion of the Government.
The Court sentenced Harris to life in prison on the CCE charge and to 35
years, to be served consecutively with the life sentence, on the remaining counts. Harris’s
direct appeal was unsuccessful, and his motion pursuant to 28 U.S.C. § 2255 to vacate his
sentence was denied in 1992.
In 1995, Harris filed a second section 2255 motion, contending that the trial
court had erred by failing to instruct the jury that it had to agree unanimously on the
specific violations that constituted the continuing series required for a CCE conviction.
The District Court acknowledged that some courts required such an instruction, but it
concluded that the lack of such an instruction was not error. After the Supreme Court
held to the contrary in Richardson v. United States, 526 U.S. 813, 818-19 (1999), Harris
sought leave to file a successive section 2255 motion raising a claim based on the Court’s
decision. The Court of Appeals for the Fourth Circuit denied the request. 1
1
Richardson did not state a rule of constitutional law. See Richardson, 526
U.S. at 818-19 (deciding the case on statutory grounds); see also 28 U.S.C. § 2255 ¶ 8
(standards for approving a successive section 2255 motion).
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Harris then filed a 28 U.S.C. § 2241 petition in the District Court for the
Middle District of Pennsylvania. He contends that (i) his conviction was constitutionally
invalid because no Richardson instruction had been given and (ii) his sentence was
unlawful under Apprendi v. New Jersey, 530 U.S. 466 (2000). The Government’s
response argued that Harris was not entitled to seek relief via section 2241. In his reply,
Harris made two new, but related, arguments: that (i) his indictment did not adequately
charge a conspiracy in violaution of 21 U.S.C. § 8462 and (ii) his life sentence on the
CCE conviction violated Apprendi.
The District Court dismissed the petition on the ground that Apprendi was
not applicable retroactively on collateral review and, therefore, Harris could not proceed
under section 2241. Harris appealed to this Court and we held the case c.a.v. pending the
decision in Largo v. Bailey, 01-1643, where a similar issue had been raised. The panel in
that case handed down its opinion on June 11, 2003 and we now proceed to disposition of
Harris’ appeal.
Under the explicit terms of section 2255, unless a section 2255 motion
would be “inadequate or ineffective,” a habeas petition under section 2241 cannot be
entertained by a court. See Application of Galante, 437 F.2d 1164, 1165 (3d Cir. 1971).
Section 2255 is not “inadequate or ineffective” merely because the sentencing court has
2
This argument is frivolous - the section 846 conviction was vacated on the
Government’s motion.
3
previously denied relief or because the gatekeeping provisions of section 2255 make it
difficult to prosecute successive motions. See In re Dorsainvil, 119 F.3d 245, 251 (3d
Cir. 1997) (explaining that a prisoner could resort to section 2241 if he “had no earlier
opportunity to challenge his conviction for a crime that an intervening change in
substantive law may negate”).
In Okereke v. United States, 307 F.3d 117, 119 (3d Cir. 2002), this Court
held that the District Court lacked jurisdiction to consider Okereke’s Apprendi claims by
recharacterizing his section 2255 motion as a motion for relief pursuant to 28 U.S.C. §
2241. We explained that section 2255 was neither “inadequate or ineffective for Okereke
to raise his Apprendi argument.” Okereke, 307 F.3d at 121.
In this case, the District Court properly concluded that Harris could not
proceed under section 2241.3 We recognize that Okereke involved a successive section
2255 motion (treated by the District Court as a section 2241 petition), whereas Harris’
petition was submitted and treated as one brought under 28 U.S.C. § 2241. However, this
variation is a distinction without a difference as to the District Court’s jurisdiction to
reach the merits of an Apprendi claim.
3
This Court has arrived at this same conclusion in two other unpublished
opinions. See Chambers v. Romine, 2002 WL 1283398, *2 (3d Cir. May 6, 2002) &
Largo v. Bailey, 2003 WL 21356962, *2 (3d Cir. June 11, 2003).
4
Those persons convicted in federal court who wish to collaterally attack
their convictions must proceed through motions pursuant to 28 U.S.C. § 2255. Section
2241 may be invoked only when section 2255 proves “inadequate or ineffective” to test
the legality of the detention. Harris has not shown us that his section 2255 petitions have
been inadequate or ineffective simply because he was previously denied relief. See In re
Dorsainvil, 119 F.3d at 251.
The District Court properly concluded that it lacked jurisdiction to hear
Harris’ section 2241 petition. Accordingly, the order of the District Court will be
affirmed.
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_________________________
TO THE CLERK:
Please file the foregoing Opinion.
/s/ Joseph F. Weis
Circuit Judge
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