Carter v. White

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
10-30-2002
Carter v. White
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-1855
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Recommended Citation
"Carter v. White" (2002). 2002 Decisions. Paper 682.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 02-1855
KEVIN CARTER,
Appellant
v.
KIM M. WHITE, SUPERINTENDENT
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 02-cv-00141)
District Judge: Hon. Jerome B. Simandle
Submitted Under Third Circuit LAR 34.1(a)
October 28, 2002
Before: SLOVITER, FUENTES, Circuit Judges
and DIAMOND,* District Judge
(Filed October 30, 2002)
OPINION OF THE COURT
___________________
* Hon. Gustave Diamond, United States District Court for the Western District of
Pennsylvania, sitting by designation.
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SLOVITER, Circuit Judge.
Appellant Kevin Carter appeals to this court alleging that the District Court
erroneously dismissed his 28 U.S.C. § 2241 petition for habeas corpus relief. Because we
conclude that the District Court did not err in dismissing Carter’s § 2241 petition, we will
affirm.
I.
Inasmuch as the parties are familiar with the factual and procedural background of
this case, we refer only to those facts as are pertinent to the issue under consideration.
On May 26, 1993, Carter pled guilty to one count of conspiracy to possess,
distribute, and attempt to distribute cocaine in violation of 21 U.S.C. § 846 in the District
Court of the Western District of Missouri. Carter was sentenced to 235 months in prison.
The Court of Appeals for the Eighth Circuit affirmed his sentence. Carter thereafter filed a
petition pursuant to 28 U.S.C. § 2255, which the sentencing court in the Western District
of Missouri denied. The Court of Appeals for the Eighth Circuit denied Carter’s petition
seeking a certificate of appealability.
Carter is currently serving his prison sentence at the Federal Correctional Institute
in Fairton, New Jersey and filed a petition for habeas corpus relief under 28 U.S.C. § 2241with the District Court for the District of New Jersey. The District Court denied
Carter’s petition for lack of jurisdiction; Carter appeals to this court.
II.
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We have jurisdiction to hear 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. See Cradle v. United States, 290 F.3d 536, 538
(3d Cir. 2002) (per curiam).
The District Court found that Carter’s § 2241 petition was actually a successive §
2255 petition because it challenged his underlying conviction and sentence rather than the
execution of that sentence. Section 2255 requires persons who seek to vacate, set aside or
correct their sentences to petition the “court which imposed the sentence” in the first
instance. 28 U.S.C. § 2255. Accordingly, the District Court held that Carter should have
filed a successive § 2255 petition with the Court of Appeals for the Eighth Circuit, seeking
to obtain certification from it permitting a successive § 2255 petition to be filed with the
sentencing court in the Western District of Missouri.
The District Court also determined that Carter, who had filed his motion under 28
U.S.C. § 2241 rather than § 2255, failed to present exceptional circumstances that would
allow him to benefit from our decision in In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997). In
that case we held that courts may hear motions pursuant to § 2241 in limited situations
where § 2255 proved “inadequate or ineffective.” Id. at 251. Furthermore, the District
Court noted that Carter’s ineffective assistance of counsel claim should have been included
in his first § 2255 petition, and in any event was not cognizable under § 2241.
On appeal, Carter concedes that he can no longer file a § 2255 petition but argues
that he can obtain relief under § 2241 by fitting within In re Dorsainvil’s exception because
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the Supreme Court issued its decision in Apprendi v. New Jersey, 530 U.S. 466 (2000),
after Carter was sentenced and therefore he could not have previously raised his Apprendi
issues. In In re Dorsainvil, we found the petitioner to be in the “unusual position” of a
prisoner with no prior opportunity to challenge his conviction for a crime that an
intervening Supreme Court decision deemed to be not criminal. 119 F.3d at 251. We held
Dorsainvil could seek habeas corpus relief pursuant to § 2241 in a district court within the
district of his confinement, because in that rare case § 2255 proved “inadequate or
ineffective.” Id. at 252.
Carter’s argument based on In re Dorsainvil, however, is foreclosed by our recent
decision in Okereke v. United States of America, No. 01-1007 (3d Cir. Sept. 12, 2002),
where we held that under In re Dorsainvil, § 2255 is not inadequate or ineffective for
individuals to raise Apprendi claims. Accordingly, Carter was not entitled to file his
petition under § 2241.
On a final note, Carter presents us with the merits of his ineffective assistance of
counsel claim without addressing the District Court’s discussion as to why that claim was
procedurally barred under § 2255 and not cognizable under § 2241. As the District Court
correctly analyzed this issue, we will not consider Carter’s ineffective assistance of
counsel claim.
III.
The District Court construed Carter’s § 2241 petition as one pursuant to § 2255 and
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properly dismissed his petition for habeas corpus relief. For the reasons set forth, we will
affirm.
/s/ Dolores K. Sloviter
Circuit Judge
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