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Shelton v. United States , 201 F. App'x 123 ( 2006 )


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  •                                                                                                                            Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
for the Third Circuit
10-12-2006
Shelton v. USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2630
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Recommended Citation
"Shelton v. USA" (2006). 2006 Decisions. Paper 331.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/331
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APS-347                                                  NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
NO. 06-2630
________________
NORMAN SHELTON,
Appellant
v.
UNITED STATES OF AMERICA
____________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 05-cv-06682)
District Judge: Honorable R. Barclay Surrick
____________________________________
Submitted For Possible Summary Action
Under Third Circuit LAR 27.4 and I.O.P. 10.6
September 28, 2006
BEFORE: SLOVITER, McKEE and FISHER, CIRCUIT JUDGES
(Filed October 12, 2006)
_______________________
OPINION
_______________________
PER CURIAM
Norman Shelton appeals from the order of the United States District Court for the
Eastern District of Pennsylvania’s denying his petition for relief pursuant to 28 U.S.C.
§ 2241. We will affirm the judgment of the District Court.1
Shelton was sentenced to 322 months in prison following his federal court
conviction for conspiracy, bank robbery, armed bank robbery, and carrying a firearm
during a crime of violence. This Court affirmed. Shelton has since filed two motions
pursuant to 28 U.S.C. § 2255, both unsuccessful.
In the instant § 2241 petition, Shelton claims he received ineffective assistance due
to counsel’s failure to raise a double jeopardy argument on the basis of his having been
convicted for both bank robbery and armed bank robbery. Shelton also contends that his
sentence was calculated improperly in light of the Supreme Court’s decision in United
States v. Booker,
    125 S. Ct. 738 
    (2005), and asks that his sentence be vacated via the writ
of audita querela. The District Court denied Shelton’s petition, and he now appeals.
A § 2255 motion is the presumptive means for a federal prisoner to challenge his
sentence or conviction. See Okereke v. United States,
    307 F.3d 117
    , 120 (3d Cir. 2002);
United States v. Miller,
    197 F.3d 644
    , 648 n.2 (3d Cir. 1999). Shelton does not meet the
narrow exception that applies when, because a § 2255 motion would be “inadequate or
ineffective,” a court is empowered to grant the writ of habeas corpus pursuant to § 2241.
See United States v. Brooks,
    230 F.3d 643
    , 646-48 (3d Cir. 2000) (petitioner must have
1
We have jurisdiction under 28 U.S.C. § 1291.
2
“no other means of having his or her claim heard”) (emphasis in original); In re
Dorsainvil,
    119 F.3d 245
    , 251-52 (3d Cir. 1997). The fact that Shelton has previously
filed a § 2255 motion, and faces the strict gatekeeping requirements that apply to second
or successive § 2255 motions does not entitle him to re-frame his § 2255 claim in a §2241
petition. See
    Brooks, 230 F.3d at 647-48
    .
Accordingly, the District Court correctly found the claims to be properly brought
under § 2255. Since Shelton has previously filed § 2255 motions seeking habeas relief,
he is required to gain authorization from this Court before filing a second or successive
§ 2255 motion. Because he did not, the District Court lacked jurisdiction to entertain the
claims under § 2255. See 28 U.S.C. 2244(b)(3)(A); Robinson v. Johnson,
    313 F.3d 128
    ,
139 (3d Cir. 2004).
Shelton argues that, because Booker does not apply retroactively to cases on
collateral review, a gap has been created in his post-conviction relief remedies, and
therefore, relief via the writ of audita querela is warranted. While there is support for the
general proposition that common law writs such as audita querela can be employed to
“fill in the gaps” in post-conviction remedies, see United States v. Valdez-Pacheco,
    237 F.3d 1077 
    (9th Cir. 2001), the writ cannot be utilized in the way Shelton proposes. As
noted above, § 2255 is the vehicle for a federal prisoner’s challenge to his sentence. For
claims that are cognizable in a § 2255 motion, the writ of audita querela is not available.
See
    id. at 1080; 
    United States v. Banda,
    1 F.3d 354 
    (5th Cir. 1993). In particular, the writ
3
cannot be invoked in order to enable a defendant to file a § 2255 claim, but avoid
complying with the rules that govern such motions. See United States v. Ayala,
    894 F.2d 425 
    (D.C. Cir. 1990) (citation omitted); see also Obado v. New Jersey,
    328 F.3d 716 
    (3d
Cir. 2003) (per curiam) (the common law writ of coram nobis may not be used to avoid
AEDPA’s gatekeeping requirements).
For the foregoing reasons, the District Court properly denied Shelton’s habeas
petition. Accordingly, we will affirm the judgment of the District Court.
4