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


5-31-2005

Speight v. Nash
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2011




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Recommended Citation
"Speight v. Nash" (2005). 2005 Decisions. Paper 1108.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1108


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HPS–92      (April, 2005)                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 _______________

                                       No. 05-2011
                                    ________________

                                CEARFUL SPEIGHT, JR.,
                                           Appellant
                                         v.

                                 WARDEN JOHN NASH
                       ____________________________________

                     On Appeal From the United States District Court
                               For the District of New Jersey
                                (D.C. Civ. No. 05-cv-00319)
                       District Judge: Honorable Freda L. Wolfson
                     _______________________________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   April 29, 2005
         Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges.
                             (Filed: May 31, 2005)
                            _______________________

                                       OPINION
                               _______________________

PER CURIAM.

              Cearful Speight filed a petition pursuant to 28 U.S.C. § 2241 to challenge

his conviction and sentence for conspiracy to distribute cocaine and crack in violation of

28 U.S.C. §§ 841 & 846. He claimed that his indictment was void because he was not

therein charged with an independent substantive offense; that the trial court, in effect,

amended the indictment to include an aggravating offense at the sentencing phase; and
that the trial court enhanced his sentence using facts not found by the jury or admitted by

Speight. The District Court, determining that 28 U.S.C. § 2255 was not an inadequate or

ineffective means by which Speight could bring his claims, dismissed Speight’s petition.

Speight filed a motion for reconsideration, which was denied. Speight appeals. Because

this appeal presents no substantial question, we will summarily affirm.

              Speight cannot bring his petition under 28 U.S.C. § 2241, because a motion

to challenge his conviction and sentence pursuant to 28 U.S.C. § 2255 is not “inadequate

or ineffective.” 28 U.S.C. § 2255 (2005). Although Speight’s claims appear at first blush

to be based on Jones v. United States, 

, 243 n.6 (1999), Apprendi v. New

Jersey, 

, 490 (2000), and Apprendi’s progeny, Speight purports to ground his

arguments in In re Winship, 

(1970). No matter which of these cases he

relies on, 28 U.S.C. § 2255 is not an inadequate or ineffective way to bring his claims.

See Okereke v. United States, 

, 120-21 (3d Cir. 2002); United States ex rel.

Leguillou v. Davis, 

, 684 (3d Cir. 1954). Therefore, the District Court

properly dismissed Speight’s petition for lack of jurisdiction and declined to grant his

motion for reconsideration.1

              For the reasons stated above, the District Court’s orders will be summarily

affirmed.


              1
                As the District Court noted in response to Speight’s argument that the
Suspension Clause was violated by the dismissal of his petition for lack of jurisdiction,
“the substitution of a collateral remedy which is neither inadequate nor ineffective to test
the legality of a person’s detention does not constitute a suspension of the writ of habeas
corpus.” Swain v. Pressley, 

, 381 (1977).