Filed: Nov. 14, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 11-14-2008 Clinton Bush v. David Elbert Precedential or Non-Precedential: Non-Precedential Docket No. 08-2929 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Clinton Bush v. David Elbert" (2008). 2008 Decisions. Paper 227. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/227 This decision is brought to you for free and open access by th
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 11-14-2008 Clinton Bush v. David Elbert Precedential or Non-Precedential: Non-Precedential Docket No. 08-2929 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Clinton Bush v. David Elbert" (2008). 2008 Decisions. Paper 227. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/227 This decision is brought to you for free and open access by the..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
11-14-2008
Clinton Bush v. David Elbert
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2929
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Clinton Bush v. David Elbert" (2008). 2008 Decisions. Paper 227.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/227
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
HLD-1 (October 2008) NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2929
___________
CLINTON BUSH,
Appellant
vs.
DAVID J. ELBERT
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(M.D. Pa. Civ. No. 08-cv-00217)
District Judge: Honorable Richard P. Conaboy
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
OCTOBER 31, 2008
Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges
(filed: November 14, 2008 )
_____________
OPINION
_____________
PER CURIAM.
Clinton Bush, a federal prisoner, 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. We will affirm.
1
Bush pleaded guilty in December 1998 in the United States District Court
for the Eastern District of Pennsylvania to one count of possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g), and was sentenced to 180 months
imprisonment with a five year period of supervised release. Bush apparently waived his
appellate rights. In March 2000, he filed a motion pursuant to 28 U.S.C. § 2255 alleging
that counsel rendered ineffective assistance. New counsel was appointed and an amended
motion adding a claim based on Apprendi v. New Jersey, 503 U.S. 466 (2000), was filed
in January of the following year. After an evidentiary hearing, the District Court
concluded that Bush’s claims were without merit and denied the motion. Bush timely
appealed. This Court denied his request for a certificate of appealability in an order
issued on September 30, 2002, see C.A. No. 01-3839, and the Supreme Court
subsequently denied his petition for a writ of certiorari. Bush then sought relief from
judgment in a motion filed pursuant to Fed. R. Civ. P. 60(b)(6) in September 2003. In his
Rule 60(b) motion, Bush once again claimed that he received ineffective assistance of
counsel – both during his initial proceedings and at the collateral challenge stage. Bush’s
motion fared no better than his § 2255 motion, and was denied by the District Court in an
order entered on October 1, 2003. After unsuccessfully seeking reconsideration, Bush
appealed. We denied his motion for a certificate of appealability in an order issued on
May 28, 2004. See C.A. No. 03-4027.
2
Undeterred, Bush thereafter sought relief in the United States District Court
for the Middle District of Pennsylvania by filing a habeas petition pursuant to 28 U.S.C. §
2241 asserting that his federal sentence was improperly enhanced pursuant to the
provisions of the Armed Career Criminal Act (“ACCA”). Because Bush failed to
establish that his remedy under § 2255 was inadequate or ineffective under the standards
announced in In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997), the District Court entered an
order on July 20, 2005 dismissing the petition without prejudice to Bush’s decision as to
whether to reassert his claim in either a § 2255 motion or an application seeking leave to
file a second or successive § 2255 motion. Bush did neither and, instead, returned to the
Eastern District where he filed a motion “to correct judgment and commitment order”
seeking to have the District Court – purportedly pursuant to Rule 36 of the Federal Rules
of Criminal Procedure – correct the judgment order to reflect the reason why he received
a term of imprisonment of 180 months instead of 120 months. In an order entered on
March 21, 2007, the District Court denied Bush’s motion noting that he was subject to a
term of imprisonment of not less than 180 months under 18 U.S.C. § 924(e)(1). Bush
appealed and we summarily affirmed the District Court’s order on December 12, 2007.
See C.A. No. 07-1974.
Not to be discouraged, Bush returned to the Middle District of Pennsylvania
less than two months later with a second § 2241 petition seeking immediate release from
confinement. Bush continued with his challenge to the 180-month term of imprisonment,
3
arguing that the maximum sentence for a § 922(g)(1) conviction is 120 months and that,
therefore, his sentence is illegal. As with his previous § 2241 petition, the District Court
determined that Bush failed to establish that his remedy under § 2255 is inadequate or
ineffective to test the legality of his continued detention, and thus dismissed it without
prejudice to his decision to either file a § 2255 motion or to seek leave from this Court to
file a second or successive § 2255 motion. This timely appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. For essentially the
same reasons set forth by the District Court, we will summarily affirm the order of
dismissal.
As the District Court properly concluded, a § 2255 motion is the
presumptive means for a federal prisoner to challenge the validity of a conviction or
sentence, unless such a motion would be “inadequate or ineffective to test the legality of
his detention.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002); 28 U.S.C.
§ 2255 ¶ 5. A § 2255 motion is inadequate or ineffective only when “some limitation of
scope or procedure” prevents a movant from receiving an adjudication of his claim.
Cradle v. United States ex rel. Miner,
290 F.3d 536, 538 (3d Cir. 2002). Section 2255 is
not inadequate or ineffective merely because a prior motion has been unsuccessful or
because Bush is unable to meet the stringent gatekeeping requirements for filing a second
or successive § 2255 motion under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”).
Okereke, 307 F.3d at 120-21. See also
Cradle, 290 F.3d at 539.
4
The “safety valve” provided under § 2255 is extremely narrow and has been
held to apply in unusual situations, such as those in which a prisoner has had no prior
opportunity to challenge his conviction for a crime later deemed to be non-criminal
because of an intervening change in the law. See Okereke, 307 F.3d at 120 (citing In re
Dorsainvil, 119 F.3d at 251). Such is not the case here. Bush makes no allegation that he
is actually innocent of the crime for which he was convicted. We agree with the District
Court that Bush’s claim is clearly a challenge to the legality of the criminal sentence
imposed by the United States District Court for the Eastern District of Pennsylvania in
United States v. Bush, E.D. Pa. Crim. No. 98-cr-00370. The exception identified in In re
Dorsainvil is simply inapplicable, and Bush may not evade the gatekeeping requirements
of § 2255 by seeking relief under § 2241.
Because the § 2241 petition was properly dismissed and the District Court
committed no abuse of discretion in denying Bush’s reconsideration motion, see Max’s
Seafood Café v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999), no substantial question is
presented by this appeal. Accordingly, the District Court’s order of dismissal will be
affirmed. See Third Circuit LAR 27.4 and I.O.P. 10.6. Bush’s “Ex Parte Special
Motion...” is denied.
5
