Vincent Pisciotta v. Warden Fort Dix FCI

BLD-082 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 21-3114
___________
VINCENT PISCIOTTA,
Appellant
v.
WARDEN FORT DIX FCI
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 1-21-cv-15852)
District Judge: Honorable Renee M. Bumb
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
February 10, 2022
Before: MCKEE, GREENAWAY, JR., and PORTER, Circuit Judges
(Opinion filed: March 1, 2022)
_________
OPINION*
_________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Vincent Pisciotta, a federal prisoner currently confined at FCI Fort Dix, appeals
pro se from the District Court’s order dismissing his petition for a writ of habeas corpus
under 28 U.S.C. § 2241. For the following reasons, we will summarily affirm the District
Court’s order.
I.
In 2012, Pisciotta was convicted in the United States District Court for the
Western District of Missouri of arson, conspiracy to commit arson, and use of fire to
commit a federal felony offense. Pisciotta was sentenced to 240 months imprisonment.
Pisciotta appealed his conviction and sentence, arguing in part that convictions of both
arson and conspiracy to commit arson violated his Fifth Amendment protection against
Double Jeopardy. The Court of Appeals for the Eighth Circuit rejected this argument and
denied Pisciotta’s appeal. See United States v. Anderson, 783 F.3d 727, 738-43 (8th Cir.
2015). Pisciotta then filed a motion to vacate under 28 U.S.C. § 2255. The sentencing
court denied the motion, and the Eighth Circuit denied Pisciotta’s request for a certificate
of appealability for failure to make the requisite showing.
Pisciotta then filed a petition pursuant to 28 U.S.C. § 2241 in the Northern District
of Texas, where he was then incarcerated, alleging that § 2255 was inadequate or
ineffective to challenge his detention. Pisciotta raised various claims regarding his
conviction and sentence, including another argument that his convictions violated
constitutional protections against Double Jeopardy. The Northern District of Texas
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dismissed his petition and the Court of Appeals for the Fifth Circuit affirmed, concluding
that Pisciotta’s “claims [we]re not cognizable in a § 2241 proceeding.” Pisciotta v.
Harmon, 748 F. App'x 634, 635 (5th Cir. 2019).
In 2021, Pisciotta filed another § 2241 habeas petition in the District of New
Jersey, the judicial district where he is incarcerated, again alleging that his convictions
for use of fire to commit a federal felony, arson, and conspiracy to commit arson violated
his Fifth Amendment protection against Double Jeopardy. The District Court dismissed
the § 2241 petition, concluding that Pisciotta failed to show that § 2255 provided an
“inadequate or ineffective” remedy to allow for consideration under § 2241. Pisciotta
appeals.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.1 We
exercise plenary review over the District Court’s legal conclusions and review its factual
findings for clear error. See Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d
Cir. 2002) (per curiam). We construe Pisciotta’s pro se filings liberally. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam). We may summarily affirm if the appeal
presents no substantial question. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.
1
Pisciotta does not need a certificate of appealability to proceed. See Reese v. Warden
Phila. FDC, 904 F.3d 244, 246 (3d Cir. 2018).
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III.
“Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which
federal prisoners can challenge their convictions or sentences.” Okereke v. United States,
307 F.3d 117, 120 (3d Cir. 2002). A habeas corpus petition under § 2241 accordingly
“shall not be entertained” unless a § 2255 motion would be “inadequate or ineffective to
test the legality of [petitioner’s] detention.” 28 U.S.C. § 2255(e). “A § 2255 motion is
inadequate or ineffective 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 wrongful detention claim.” Cradle, 290 F.3d at 538. This
“safety-valve” exception is narrow and applies only in rare circumstances, such as when
“an intervening change in statutory interpretation runs the risk that an individual was
convicted of conduct that is not a crime, and that change in the law applies retroactively
in cases on collateral review.” See Bruce v. Warden Lewisburg USP, 868 F.3d 170, 179
(3d Cir. 2017).
We agree with the District Court’s determination that Pisciotta could not make the
showing necessary to meet the safety-valve exception. As the District Court explained,
Pisciotta failed to alleged any “intervening change in statutory interpretation” or legal
precedent that would apply retroactively to his conviction. Pisciotta alleges that he
should be allowed to proceed under § 2241 because he is unable to raise his Double
Jeopardy argument under § 2255. This argument ignores his own prior challenges to his
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conviction. As we described above, Pisciotta has had numerous “earlier opportunit[ies]”
to present his Double Jeopardy claim, Bruce, 868 F.3d at 180, and the fact that his prior
challenges have been unsuccessful and/or a new one would be barred as successive does
not make it an inadequate remedy. See Okereke, 307 F.3d at 120; Cordaro v. United
States, 933 F.3d 232, 240-41 (3d Cir. 2019) (holding that colorable claims of actual
innocence whereby a petitioner is “being detained for conduct that was subsequently
rendered noncriminal” by a Supreme Court decision may meet the § 2255(e) requirement
when the petitioner had no earlier opportunity to raise the claims).
For those reasons, we will affirm the judgment of the District Court.2 See 3d Cir.
L.A.R. 27.4 (2011); 3d Cir. I.O.P. 10.6 (2018).
2
Pisciotta’s petition alternatively asserted his Double Jeopardy claim pursuant to the All
Writs Act, 28 U.S.C. § 1651. To the extent that Pisciotta maintains this argument on
appeal, we conclude that the District Court properly dismissed this claim. The All Writs
Act is “a residual source of authority to issue writs that are not otherwise covered by
statute,” and “[w]here a statute specifically addresses the particular issue at hand, it is that
authority, and not the All Writs Act, that is controlling.” Pa. Bureau of Corr. v. U.S.
Marshals Serv., 474 U.S. 34, 43 (1985). Section 2255 motions “are the presumptive
means by which federal prisoners can challenge their convictions or sentences that are
allegedly in violation of the Constitution” or the laws of the United States. Okereke, 307
F.3d at 120. Pisciotta’s Double Jeopardy claim, an alleged constitutional violation, could
have been brought in his § 2255 motion.
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