United States v. Thomas , 179 F. App'x 114 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
4-28-2006
USA v. Thomas
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4676
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BPS-169 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4676
UNITED STATES OF AMERICA
v.
FRANKIE THOMAS,
Appellant
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(M.D. Pa. Crim. No. 96-cr-00297)
District Judge: Honorable Sylvia H. Rambo
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
March 23, 2006
Before: RENDELL, AMBRO and BECKER, Circuit Judges
(Filed: April 28, 2006)
OPINION
PER CURIAM
Frankie Thomas, a federal prisoner, appeals pro se from an order of the District
Court for the Middle District of Pennsylvania dismissing his habeas corpus petition. In
1997, a jury convicted Thomas of armed bank robbery and carrying a firearm in relation
to a crime of violence, and Thomas was sentenced to a total of 322 months’
imprisonment. We affirmed Thomas’s convictions and sentence on appeal. See United
States v. Thomas, No. 97-7387 (judgment entered March 13, 1998). Thomas’s first
motion to vacate sentence under 28 U.S.C. § 2255 was filed in September 1998 and was
denied by the District Court. We declined to issue Thomas a certificate of appealability.
See United States v. Thomas, No. 99-3050 (order entered August 12, 1999). Thomas
subsequently filed a series of applications under 28 U.S.C. § 2244 seeking our
authorization to file a second or successive § 2255 motion, each of which was denied.
In his current habeas petition, filed pursuant to 28 U.S.C. § 2241, Thomas argues
that his sentence violates his Fifth and Sixth Amendment rights because he did not
concede and a jury did not determine that his prior state convictions qualified as a basis
for enhancement under the sentencing guidelines. Thomas also argues that counsel was
ineffective for failing to object to the sentence enhancements and because he “wasted”
Thomas’s appeal rights by only contesting the testimony of one witness, which he had
failed to object to during trial. The District Court dismissed Thomas’s petition for lack of
jurisdiction, rejecting Thomas’s contention that § 2255 was an “inadequate or ineffective”
means by which to raise his claims.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. After a careful
review of the record, we conclude that Thomas’s appeal must be dismissed. See 28
U.S.C. § 1915(e)(2)(B)(i).
Section 2255 is the presumptive means for a federal prisoner to challenge his
sentence or conviction. Davis v. United States, 417 U.S. 333, 343 (1974). A habeas
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petitioner can seek relief under 28 U.S.C. § 2241 only if the remedy provided by § 2255
is “inadequate or ineffective to test the legality of [the] detention.” See 28 U.S.C. § 2255
¶ 5. As noted by the District Court, § 2255 is not inadequate or ineffective merely
because Thomas cannot meet the AEDPA’s stringent gatekeeping requirements. See
Dist. Ct. Op. at 2; Cradle v. United States ex rel. Miner, 290 F.3d 536, 539 (3d Cir. 2002)
(per curiam). Rather, § 2255 is inadequate or ineffective only where the petitioner
demonstrates a limitation in the scope or procedure offered by § 2255 which would
prevent him from having a full hearing and adjudication of his claim. See Cradle, 290
F.3d at 538. Thomas has not demonstrated such a limitation in § 2255's scope or
procedure. Thomas’s petition raises no claims which could not have been raised in a
motion pursuant to § 2255. In fact, Thomas’s proposed claims are similar, if not
identical, to claims he attempted to raise in his § 2244 applications. Thomas cannot use
§ 2241 as an alternative means of presenting these claims in the District Court.
Section 1915(e)(2)(B)(i) instructs us to dismiss any appeal brought in forma
pauperis if, inter alia, it lacks an arguable basis in law or in fact. Neitzke v. Williams,
490 U.S. 319 (1989). Because the District Court’s judgment was clearly correct, Thomas
had no arguable legal basis upon which to appeal. Accordingly, Thomas’s appeal will be
dismissed under § 1915(e)(2)(B). Appellant’s motion for the appointment of counsel is
DENIED.
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