Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-2-2005

Hazel v. Smith
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1564




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Recommended Citation
"Hazel v. Smith" (2005). 2005 Decisions. Paper 748.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/748


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CPS-263                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 05-1564
                                   ________________

                                    BOBBY HAZEL,

                                            Appellant

                                              v.

                             JOSEPH SMITH, Warden
                      ____________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                              (D.C. Civ. No. 05-cv-00131)
                    District Judge: Honorable William W. Caldwell
                    _______________________________________


 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   June 3, 2005

             BEFORE: ALITO, McKEE and AMBRO, CIRCUIT JUDGES

                                 (Filed August 2, 2005)


                              _______________________

                                      OPINION
                              _______________________

PER CURIAM

      Bobby E. Hazel, pro se, appeals an order of the United States District Court for the

Middle District of Pennsylvania dismissing his habeas petition filed pursuant to 28 U.S.C.
§ 2241 for lack of jurisdiction. We will affirm.

       In 1993, a federal jury found Hazel and a co-defendant guilty of first-degree

murder and possession of a dangerous weapon by a prisoner for murdering a fellow

inmate at Lorton Correctional Facility in Occoquan, Virginia. Hazel was sentenced to life

imprisonment. He appealed, and the United States Court of Appeals for the Fourth

Circuit affirmed his conviction and sentence, which he is now serving at the United States

Penitentiary at Lewisburg, Pennsylvania. In 1997, Hazel filed a motion to vacate, set

aside or correct his sentence pursuant to 28 U.S.C. § 2255. It was denied on the merits.

Following the denial of that motion, Hazel has filed a series of applications to file a

second or successive § 2255 motion, one of which was granted. The second § 2255

motion he was permitted to file, however, was denied.

       In January 2005, Hazel filed the instant petition pursuant to § 2241. He claims that

the District Court that adjudicated his first § 2255 motion summarily dismissed his

motion without an evidentiary hearing or a full consideration of his claims and that his

claims were not fully addressed in any of his attempts at collateral attack. He also claims

actual innocence. The District Court dismissed Hazel’s petition on the basis that § 2255

was not inadequate, and the court, therefore, lacked jurisdiction to consider Hazel’s

claims under § 2241. Hazel filed a motion for reconsideration, which the District Court

denied. Hazel timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291.

       We agree with the District Court that Hazel is not entitled to bring his claims under



                                              2
§ 2241. His claims of ineffective assistance of counsel and prosecutorial withholding of

evidence place his petition squarely within the scope of § 2255. Section 2255 is not

inadequate simply because AEDPA’s gatekeeping restrictions prevent him from availing

himself of it. See Cradle v. United States ex rel. Miner, 

, 538-39 (3d Cir.

2002); In re Dorsainvil, 

, 251 (3d Cir. 1997).

       Summary action is appropriate if there is no substantial question on appeal. See

Third Circuit LAR 27.4. For essentially the reasons set forth by the District Court, we

will summarily affirm the District Court’s order dismissing Hazel’s § 2241 petition. See

Third Circuit I.O.P. 10.6.




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