Parke v. Kirby , 441 F. App'x 64 ( 2011 )

ALD-232 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-2277
___________
LENWORTH PARKE,
Appellant
v.
MARK A. KIRBY, Acting Warden
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 1-10-cv-04673)
District Judge: Honorable Jerome B. Simandle
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
July 8, 2011
Present: SCIRICA, HARDIMAN and VANASKIE, Circuit Judges
(Opinion filed: August 1, 2011)
_________
OPINION
_________
PER CURIAM
Lenworth Parke, a prisoner incarcerated at the Federal Correctional Institution
Fairton located in Fairton, New Jersey, appeals from an order of the District Court
dismissing his habeas petition. For the following reasons, we will summarily affirm.
I.
After a two-month trial in January and February 1993, Parke was found guilty by a
jury in the United States District Court for the Northern District of New York on various
drug charges and for murdering a federal law enforcement officer in an attempt to
perpetrate a robbery. He was sentenced to life imprisonment. The Court of Appeals for
the Second Circuit affirmed his judgment of conviction. United States v. Thomas, 34
F.3d 44, 45 (2d Cir. 1994). Parke filed a motion to vacate his sentence, pursuant to 28
U.S.C. § 2255, which was denied. The Second Circuit summarily affirmed on appeal.
Parke v. United States, 25 F. App’x 72 (2d Cir. 2002). After unsuccessfully seeking
relief pursuant to Federal Rule of Civil Procedure 60(b), see Parke v. United States, Civ.
A. No. 97-526, 2006 WL 3051775, at *1 (N.D.N.Y. 2006), Parke filed three applications
with the Second Circuit for permission to file a second or successive § 2255 motion, all
of which were denied.
In September 2010, Parke filed a petition for a writ of habeas corpus in the United
States District Court for the District of New Jersey, apparently pursuant to 28 U.S.C. §
2241. He alleged that (1) his due process rights were violated because the jury was
instructed that it could find him guilty of murder on a Pinkerton theory of liability, see
Pinkerton v. United States, 328 U.S. 640 (1946); (2) trial and appellate counsel were
ineffective for failing to challenge that jury instruction; and (3) the trial court lacked
jurisdiction to try him for murder because the victim was not a federal officer, but a state
officer who happened to be working with the federal Drug Enforcement Agency. Parke
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also alleged that he is “factually innocent” because of the unconstitutional jury instruction
and counsels’ failure to challenge it. (Habeas Pet. 6, 8.)
The District Court sua sponte dismissed the petition for lack of jurisdiction on the
basis that Parke could not invoke 28 U.S.C. § 2241 to pursue his claims and thus, his
petition was in essence an unauthorized second or successive § 2255 motion. Parke
timely appealed.
II.
We have jurisdiction over this appeal 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 factual findings.” Manna v. Schultz, 591 F.3d 664, 665
(3d Cir. 2010) (per curiam). We may summarily affirm if no substantial question is
presented by the appeal. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.
“Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which
federal prisoners can challenge their convictions or sentences that are allegedly in
violation of the Constitution.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir.
2002). Accordingly, “unless a § 2255 motion would be ‘inadequate or ineffective,’ a
habeas corpus petition under § 2241 [attacking a prisoner’s conviction or sentence]
cannot be entertained by the court.” Cradle v. United States ex rel. Miner, 290 F.3d 536,
538 (3d Cir. 2002) (per curiam); see also 28 U.S.C. § 2255(e). That standard is met “only
where the petitioner demonstrates that some limitation of scope or procedure would
prevent a § 2255 proceeding from affording him a full hearing and adjudication of his
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wrongful detention claim.” Cradle, 290 F.3d at 538. The mere fact that a § 2255 motion
would be unsuccessful or barred by § 2255’s “stringent gatekeeping requirements” is
insufficient to meet the standard. Id.; see also In re Dorsainvil, 119 F.3d 245, 251 (3d
Cir. 1997).
We agree with the District Court that Parke has not demonstrated that § 2255
would be an inadequate or ineffective vehicle for the pursuit of his claims. To the
contrary, all of Parke’s claims could have been raised in his first § 2255 motion since
they are based on alleged constitutional error at trial and on direct appeal. Nor do Parke’s
claims of factual innocence, which are based solely on the constitutional claims alleged in
his petition and not on a previously unavailable legal interpretation, make § 2241
available to him. See Manna, 591 F.3d at 665 (summarily affirming dismissal of § 2241
petition despite petitioner’s allegations of actual innocence). In fact, Parke’s petition
appears to be an attempt to circumvent the Second Circuit’s rulings that he cannot satisfy
§ 2255’s gatekeeping standards, which, as noted above, does not entitle him to pursue
relief through § 2241. Accordingly, Parke’s petition is in essence an unauthorized second
or successive § 2255 motion that the District Court properly dismissed for lack of
jurisdiction. See Okereke, 307 F.3d at 120-21; see also 28 U.S.C. §§ 2244(a), 2255(h).
Since Parke’s appeal does not present a substantial question, we will summarily
affirm. Parke’s motion in opposition to summary action is denied.
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