Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-18-2007

Kennedy v. Miner
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4407




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"Kennedy v. Miner" (2007). 2007 Decisions. Paper 1256.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1256


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DLD-179                                                       NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                 ________________

                                      No. 06-4407
                                   ________________

                                 ANDREW KENNEDY,

                                                       Appellant

                                            v.

                                  JONATHAN MINER

                                   ________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                               (D.C. Civ. No. 06-cv-00314)
                     District Judge: Honorable A. Richard Caputo
                                   ________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                 March 29, 2007

               Before:     BARRY, AMBRO and FISHER, Circuit Judges

                                 (Filed: April 18, 2007)

                                   ________________

                                       OPINION
                                   ________________

PER CURIAM

      Andrew Kennedy appeals from the order of the United States District Court for the

Middle District of Pennsylvania denying his petition for relief pursuant to 28 U.S.C. §
2241. We will affirm the judgment of the District Court.1

         In 1990 Andrew Kennedy was convicted of drug related offenses in the United

States District Court for the District of Columbia. He was sentenced to 328 months in

prison. The United States Court of Appeals for the District of Columbia Circuit affirmed

in September 1991. See § 2241 Petition at 2. At some point after Kennedy’s initial

conviction, he was inadvertently released from federal custody prior to commitment to

the Bureau of Prisons, and he remained free for several years. In 1996 Kennedy was

sentenced on separate charges to 108 months in prison by the United States District Court

for the District of Maryland. In February 1998, the fact that Kennedy had been

mistakenly released was discovered, and he was informed that he would have to complete

the 1990 sentence before commencing the 1996 sentence. In December 1998 Kennedy

filed a § 2255 motion in the U.S. District Court for the District of Columbia. The petition

was dismissed as untimely.

         In February 2006 Kennedy filed a petition pursuant to 28 U.S.C. § 2241 in the

Middle District of Pennsylvania, challenging the sentence he received in 1990.

Specifically, Kennedy claims that, given the amount of cocaine base set forth in the

indictment and found by the jury, the appropriate sentencing range under the Federal

Sentencing Guidelines was 151-188 months in prison. As a result, he maintains that he is

“actually innocent” of the judicial fact that enhanced his 1990 sentence beyond 188



   1
       We have jurisdiction under 28 U.S.C. § 1291.

                                              2
months.2 The District Court dismissed the petition, concluding that Kennedy had not

shown that relief under § 2255 was inadequate or ineffective. 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, 

, 120 (3d Cir. 2002);

United States v. Miller, 

, 648 n.2 (3d Cir. 1999). Such claims may not be

raised in a § 2241 petition except in an “unusual circumstance” where a § 2255 motion

would be “inadequate or ineffective.” See 28 U.S.C. § 2255; In re Dorsainvil, 

, 251 (3d Cir. 1997). A § 2255 motion will be considered “inadequate or ineffective”

only when “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 v. United States, 

, 538 (3d Cir. 2002).

The fact that Kennedy previously filed a § 2255 motion that was denied as untimely, and

thus faces the strict gatekeeping requirements that apply to second or successive § 2255

motions, does not serve to make § 2255 inadequate or ineffective. See 

.

       Kennedy explicitly challenges his 1990 conviction and sentence and, thus, is

subject to the requirements set forth in Dorsainvil. See 

We agree with the

District Court that Kennedy is not in the unusual situation contemplated by this Court in

Dorsainvil. See United States v. Brooks, 

, 646-48 (petitioner must have “no


   2
   The petition indicates that Kennedy raised the same challenge in his previous § 2255
motion.

                                             3
other means of having his or her claim heard”) (emphasis in original). As the District

Court pointed out, Kennedy could have raised his claim during direct appeal or in his

initial § 2255 motion. Any argument that the unique circumstances of his case prevented

Kennedy from being properly informed of court decisions in his case do not suffice to

make § 2255 an inadequate vehicle for his challenge. See Cradle v. United States, 

, 538 (3d Cir. 2002) (“the inefficacy of the remedy” is what is determinative,

“not the personal inability to utilize it”). Accordingly, the District Court properly denied

Kennedy’s § 2241 petition.

       For the foregoing reasons, we will affirm the judgment of the District Court.




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