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


8-26-2005

USA v. Enigwe
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2380




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation
"USA v. Enigwe" (2005). 2005 Decisions. Paper 649.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/649


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 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
DPS-289                                                    NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    No. 05-2380
                                 ________________

                          UNITED STATES OF AMERICA

                                          v.

                             IFEDOO NOBLE ENIGWE,

                                               Appellant
                              _____________________

                   On Appeal From the United States District Court
                      For the Eastern District of Pennsylvania
                          (E.D. Pa. Crim. No. 92-cr-00257)
                      District Judge: Honorable Jan E. DuBois
                             _______________________

                       Submitted for Possible Summary Action
                     Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  on June 23, 2005

              Before: ROTH, BARRY AND SMITH, CIRCUIT JUDGES

                               (Filed: August 26, 2005 )




                                    OPINION




PER CURIAM

      In 1992, Ifedoo Enigwe was convicted of importing heroin in violation of 21

U.S.C. § 960(a) and related crimes. He was sentenced to 235 months in prison. This
Court affirmed his conviction and sentence in 1994. That year, Enigwe filed a motion to

vacate his sentence under 28 U.S.C. § 2255, which was denied.

       Enigwe sought, without success, authorization to file several second or successive

§ 2255 motions, and to recall the mandate of his direct appeal. This Court then granted

his application to file a second or successive § 2255 motion based on Apprendi v. New

Jersey, 

(2000). The District Court denied the motion on the merits, and

this Court denied a certificate of appealability. Enigwe subsequently filed additional

applications to file second or successive § 2255 motions with no success.

       The current appeal challenges the District Court’s order denying Enigwe’s motion

for reconsideration of the denial of his Apprendi claim, based upon the Supreme Court’s

decisions in Schriro v. Summerlin, 

(2004), and Blakely v. Washington,

(2004). The District Court deferred ruling on the motion until the

Supreme Court decided United States v. Booker, 

(2005), and then denied it

on the merits and granted a certificate of appealability, after concluding that Enigwe

properly brought his motion under Federal Rule of Civil Procedure 60(b). The District

Court noted that it had previously allowed Enigwe to proceed under Rule 60(b) to seek

reconsideration of the denial of his Apprendi claim because this Court had ruled that

AEDPA did not apply to that claim. See United States v. Enigwe, 

,

430 (E.D. Pa. 2002).

       AEDPA, however, did not apply to Enigwe’s Apprendi claim because at the time



                                             2
he sought to file his § 2255 motion based upon Apprendi, he had filed one § 2255 motion

before the effective date of AEDPA, and he could have filed a second petition under pre-

AEDPA law. See In re Minarik, 

, 609 (3d Cir. 1999). Now that Enigwe has

filed a post-AEDPA § 2255 motion, AEDPA applies, and any subsequent motion

challenging his conviction or sentence requires the Court’s authorization before filing.

       A Rule 60(b) motion in this context may be adjudicated on the merits when the

factual predicate of the motion attacks the manner in which an earlier habeas judgment

was procured, and not the underlying conviction. Pridgen v. Shannon, 

, 727

(3d Cir. 2004), cert. denied, 

(2005). Enigwe’s Rule 60(b) motion,

however, does not attack the manner of his prior § 2255 proceeding, but his underlying

sentence. If he were to succeed on his claim, his sentence would be vacated. The proper

forum for this claim is a § 2255 proceeding. See 

must obtain this

Court’s authorization before the District Court can entertain his claim.1

       Because the District Court lacked jurisdiction over Enigwe’s Rule 60(b) motion,

we will vacate the District Court’s order.2


   1
    However, an application pursuant to 28 U.S.C. § 2244 for authorization to file a
second or successive § 2255 motion raising a Booker claim would be denied. See In re
Olopade, 

, 160 (2005).
   2
    Enigwe’s request for a certificate of appealability in connection with the District
Court’s denial of his motion under Federal Rule of Criminal Procedure 12(b)(2) is denied.
The District Court’s procedural ruling is correct. See Slack v. McDaniel, 

,
478 (2000). Enigwe’s motion for appointment of counsel also is denied. Because the
District Court lacked jurisdiction over the Rule 60(b) motion, appointment of counsel is
not warranted based upon its grant of a certificate of appealability.

                                              3