McLoyd v. Nash ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
8-15-2006
McLoyd v. Nash
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1809
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Recommended Citation
"McLoyd v. Nash" (2006). 2006 Decisions. Paper 586.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/586
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APS-277 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
NO. 06-1809
________________
LUTHER J. MCLOYD,
Appellant
v.
WARDEN JOHN NASH;
UNITED STATES OF AMERICA
_______________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 05-cv-04154)
District Judge: Honorable Jerome B. Simandle
_______________________________________
Submitted Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
July 13, 2006
Before: SLOVITER, McKEE AND FISHER, CIRCUIT JUDGES.
(Filed: August 15, 2006 )
_______________________
OPINION
_______________________
PER CURIAM
Appellant Luther McLoyd appeals from the dismissal for lack of jurisdiction of his
petition for a writ of habeas corpus under 28 U.S.C. § 2241. Because no substantial
question is presented, we will summarily affirm. See L.A.R. 27.4.
McLoyd pleaded guilty in the United States District Court for the Eastern District
of North Carolina to possession with intent to distribute more than fifty grams of crack
cocaine, for which he received 262 months’ imprisonment. After pursuing a direct appeal
and several habeas challenges in North Carolina, he filed a § 2241 petition in the United
States District Court for the District of New Jersey1 claiming a violation of the rule
announced in United States v. Booker, 543 U.S. 220 (2005). The District Court found
that McLoyd could not bring his petition under § 2241 because 28 U.S.C. § 2255 was not
inadequate or ineffective. It then dismissed the motion for lack of jurisdiction,
concluding that a § 2255 motion must be filed in the district court “which imposed the
sentence . . . .” § 2255 ¶ 1. McLoyd appealed.
A federal prisoner cannot file a challenge to his conviction under § 2241 unless
§ 2255 is “inadequate and ineffective.” § 2255 ¶ 5; see also Cradle v. U.S. ex rel. Miner,
290 F.3d 536, 538 (3d Cir. 2002). Section 2255 is not “inadequate or ineffective” simply
because the movant cannot meet the section’s stringent gate-keeping requirements or that
the sentencing court has failed to grant relief. See In re Dorsainvil, 119 F.3d 245, 251-52
(3d Cir. 1997).
The District Court is correct that the instant case is distinguished from In re
Dorsainvil. There, we narrowly construed Dorsainvil and held that § 2255 was
ineffective where a Supreme Court decision changed substantive law which could negate
1
McLoyd is currently incarcerated at FCI-Fort Dix.
2
a conviction if made retroactive and the prisoner had no prior opportunity to raise the
issue. See Okereke v. United States, 307 F.3d 117, 120-21 (3d Cir. 2002). Even a
successful challenge under Booker would not render the conduct for which McLoyd was
convicted non-criminal. Okereke’s similar conclusion with respect to a challenge under
Apprendi v. New Jersey, 530 U.S. 466 (2000), controls in this situation. McLoyd fails to
show that § 2255 is “inadequate or ineffective.”
Thus, McLoyd’s petition should be construed as a § 2255 motion. However, such
a motion must be filed in the court which imposed the sentence. § 2255 ¶ 1. Moreover,
since McLoyd has already pursued a § 2255 petition in the District Court for the Eastern
District of North Carolina, he must seek the authorization of the United States Court of
Appeals for the Fourth Circuit. See 28 U.S.C. § 2255 ¶ 8. The District Court for the
District of New Jersey does not have jurisdiction over McLoyd’s § 2255 motion.
Accordingly, we will affirm.2
2
We note that Appellant’s submission on appeal is extremely difficult to decipher.
He appears to concede that the District Court properly ruled on his Booker claim, but he
argues that an underlying new claim relating to an amendment of the indictment is
cognizable under § 2241. We take no position on this argument as we generally do not
consider claims not presented to the District Court. See Royce v. Hahn, 151 F.3d 116,
125 (3d Cir. 1998).
3