Charles Johnson v. United States

*AMENDED CLD-218 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-1417
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CHARLES JOHNSON,
Appellant
v.
UNITED STATES OF AMERICA
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 13-cv-00030)
District Judge: Honorable Ronald L. Buckwalter
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
May 2, 2013
Before: RENDELL, JORDAN and SHWARTZ, Circuit Judges
(Opinion filed: August 13, 2013)
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OPINION
_________
PER CURIAM
Charles Johnson appeals the dismissal of his petition pursuant to 28 U.S.C. § 2241for lack of jurisdiction. We will summarily affirm the judgment of the District Court for
the Eastern District of Pennsylvania.
I.
Johnson, who is presently incarcerated at Allenwood-FCI, was convicted in the
Eastern District of Pennsylvania for possession of cocaine base with intent to distribute,
possession of a firearm in furtherance of a drug trafficking offense, and being a felon in
possession of a firearm. He was sentenced in 2003 as an Armed Career Criminal,
pursuant to 18 U.S.C. § 924(e). He is currently serving an enhanced sentence of 360
months to run consecutively with a term of 60 months. This Court affirmed his judgment
of conviction and sentence. United States v. Johnson, 93 F. App’x 416 (3d Cir. 2004). In
2005, Johnson filed a motion pursuant to 28 U.S.C. § 2255, which was denied by the
District Court. This Court declined to issue a certificate of appealability, C.A. No. 06-
1029.
In October 2012, Johnson filed a 28 U.S.C. § 2241 petition in the Middle District
of Pennsylvania. He argued, based on this Court’s recent decision in United States v.
Isaac, that he was legally entitled to, but never received, notice of the sentencing
enhancement to which he was exposed. 655 F.3d 148 (3d Cir. 2011). The Magistrate
Judge recommended transferring the case to the Eastern District, where Johnson was
sentenced. The case was transferred, and the District Court in the Eastern District
dismissed for lack of jurisdiction. Johnson appealed.
II.
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The District Court found that Johnson’s petition was more akin to a second or
successive § 2255 motion. We agree. See United States v. Miller, 197 F.3d 644, 648 n.2
(3d Cir. 1999) (noting the purpose of § 2255 is to collaterally attack the validity of a
prisoner’s judgment or sentence). Because Johnson had not obtained the required
authorization from this Court for seeking such relief, the District Court properly
dismissed the motion. See 28 U.S.C. § 2244(b)(3); § 2255(h) (requiring a second and
successive motion “be certified” by a panel of the appropriate court of appeals); see also
Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002) (authorizing dismissal for non-
authorized second or successive petitions).
Moreover, Johnson has failed to show that his circumstances warrant
consideration under 28 U.S.C. § 2241. A federal prisoner may challenge his conviction
or sentence under § 2241 only if the remedy provided by § 2255 is inadequate or
ineffective to test the legality of his detention. See 28 U.S.C. § 2255. 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. See Cradle v. United States ex rel.
Miner, 290 F.3d 536, 538 (3d Cir. 2002). In other words, only when a federal prisoner is
in an unusual position of having no earlier opportunity to challenge his conviction or
where he “is being detained for conduct that has subsequently been rendered non-
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criminal by an intervening Supreme Court decision” can he avail himself of § 2241. In re
Dorsainvil, 119 F.3d 245, 251-52 (3d Cir. 1997).
Johnson argued “that he has no other alternative but to seek relief under 28 U.S.C.
§ 2241, because . . . of ‘procedural reasons;” namely, “he cannot satisfy the requirements
in place to file a second or successive motion under 28 U.S.C. § 2255(h)(2).” Org. Rec.
4-5, Jan. 2, 2013, ECF No. 1-2 (also found as M.D. Pa. 12-cv-02118, Pet. 3-4, Oct. 23,
2012, ECF No. 2). We have previously rejected this argument and ruled that the inability
to meet the stringent gatekeeping requirements for filing a second or successive § 2255
motion is not a ground for invoking § 2241. Dorsainvil, 119 F.3d at 251.
To the extent that Johnson is seeking to challenge the legality of the duration of
his confinement by relying on United States v. Isaac, 655 F.3d 148 (3d Cir. 2011), which
he believes is “new law,” the relief he is seeking can only be attained by way of a § 2255
motion. See Dorsainvil, 119 F.3d at 249; Cradle, 290 F.3d at 538.
Lastly, in his response to the Clerk’s summary action notice, Johnson makes a
miscarriage of justice argument, reasserting that his sentence enhancement was
unconstitutional because the District Court lacked jurisdiction under 21 U.S.C. § 851(a).
However, Johnson does not maintain that he is innocent, nor does he argue that he was
improperly classified as an Armed Career Criminal under 18 U.S.C. § 924(e). Therefore,
his miscarriage of justice claim also fails. See Dorsainvil, 119 F.3d at 251; see also
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Bousley v. United States, 523 U.S. 614, 623-24 (1998) (requiring a showing of factual
innocence).
III.
For the reasons given, this appeal presents us with no substantial question. See 3d
Cir. L.A.R. 27.4 and I.O.P. 10.6. Accordingly, we will summarily affirm the judgment of
the District Court. Murray v. Bledsoe, 650 F.3d 246, 248 (3d Cir. 2011) (per curiam).
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