Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-24-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4500




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Recommended Citation
"Thomas v. Smith" (2006). 2006 Decisions. Paper 1046.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1046


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DPS-131                                                     NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                    NO. 05-4500
                                 ________________

                           STEPHEN LEE THOMAS, II,

                                           Appellant

                                           v.

                              JOSEPH SMITH, Warden

                    ____________________________________

                  On Appeal From the United States District Court
                      For the Middle District of Pennsylvania
                           (D.C. Civil No. 05-cv-00985)
                      District Judge: Honorable Yvette Kane
                  _______________________________________


                     Submitted For Possible Summary Action
                    Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                 February 16, 2006

    BEFORE: ROTH, FUENTES and VAN ANTWERPEN, CIRCUIT JUDGES

                                (Filed May 24, 2006)


                            _______________________

                                    OPINION
                            _______________________

PER CURIAM

     Steven Thomas appeals the denial of his petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 by the District Court for the Middle District of

Pennsylvania.

                                             I.

       Thomas was convicted in the Western District of Texas of bank robbery and a

weapons offense, and was sentenced to a collective term of 360 months imprisonment.

Thomas subsequently filed a motion to vacate pursuant to 28 U.S.C. § 2255 and two §

2241 habeas petitions in the Western District of Texas, all of which were dismissed.

       In 2005, Thomas filed a § 2241 habeas petition in the Middle District of

Pennsylvania, his district of confinement, challenging his sentence under United States v.

Booker, 

(2005). The District Court found that § 2241 was not available to

Thomas and denied relief. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

                                            II.

       A § 2255 motion filed in the sentencing court is the presumptive means for a

federal prisoner to challenge to his sentence. 28 U.S.C. § 2255; Okereke v. United States,

, 120 (3d Cir. 2002). A § 2241 petition may not be entertained unless a

motion under § 2255 would be “inadequate or ineffective to test the legality of [the]

detention.” 28 U.S.C. § 2255. A § 2255 motion is not “inadequate or ineffective” merely

because the petitioner can not meet the stringent gate keeping requirements of § 2255,

, or because the sentencing court does not grant relief, Cradle v.

United States ex rel. Miner, 

, 539 (3d Cir. 2002).

       Thomas’ claims fall within the purview of § 2255, and as found by the District
Court, Thomas has not demonstrated that § 2255 is “inadequate or ineffective.” Cf.

-21 (finding § 2255 not “inadequate or ineffective”, where

successive petitioner sought to raise sentencing claim based on intervening decision in

New Jersey v. Apprendi, 

(2001)). Furthermore, Thomas’ assertion that his

case is analogous to In re Dorsainvil, 

(3d Cir. 1997), in that he is actually

innocent of the murder that provided the basis for his significant sentencing enhancement,

see Memorandum in Support of Habeas Petition at 6-7, is without merit. Unlike the

intervening change in law in Dorsainvil that potentially made the crime for which the

petitioner was convicted non-criminal, Booker deals with sentencing and did not render

robbery, Thomas’ offense of conviction, non-criminal. See 

.

                                             III.

       Accordingly, as there is no substantial question presented by this appeal, we will

summarily affirm. Third Circuit LAR 27.4; Third Circuit I.O.P. 10.6.