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


8-15-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1809




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Recommended Citation
"McLoyd v. Nash" (2006). 2006 Decisions. Paper 586.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/586


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APS-277                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                     NO. 06-1809
                                  ________________

                                LUTHER J. MCLOYD,
                                            Appellant

                                            v.

                             WARDEN JOHN NASH;
                         UNITED STATES OF AMERICA
                    _______________________________________

                    On Appeal From the United States District Court
                              For the District of New Jersey
                               (D.C. Civ. No. 05-cv-04154)
                     District Judge: Honorable Jerome B. Simandle
                    _______________________________________

              Submitted Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                   July 13, 2006
           Before: SLOVITER, McKEE AND FISHER, CIRCUIT JUDGES.

                               (Filed: August 15, 2006 )
                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Appellant Luther McLoyd appeals from the dismissal for lack of jurisdiction of his

petition for a writ of habeas corpus under 28 U.S.C. § 2241. Because no substantial

question is presented, we will summarily affirm. See L.A.R. 27.4.
       McLoyd pleaded guilty in the United States District Court for the Eastern District

of North Carolina to possession with intent to distribute more than fifty grams of crack

cocaine, for which he received 262 months’ imprisonment. After pursuing a direct appeal

and several habeas challenges in North Carolina, he filed a § 2241 petition in the United

States District Court for the District of New Jersey1 claiming a violation of the rule

announced in United States v. Booker, 

(2005). The District Court found

that McLoyd could not bring his petition under § 2241 because 28 U.S.C. § 2255 was not

inadequate or ineffective. It then dismissed the motion for lack of jurisdiction,

concluding that a § 2255 motion must be filed in the district court “which imposed the

sentence . . . .” § 2255 ¶ 1. McLoyd appealed.

       A federal prisoner cannot file a challenge to his conviction under § 2241 unless

§ 2255 is “inadequate and ineffective.” § 2255 ¶ 5; see also Cradle v. U.S. ex rel. Miner,

, 538 (3d Cir. 2002). Section 2255 is not “inadequate or ineffective” simply

because the movant cannot meet the section’s stringent gate-keeping requirements or that

the sentencing court has failed to grant relief. See In re Dorsainvil, 

, 251-52

(3d Cir. 1997).

       The District Court is correct that the instant case is distinguished from In re

Dorsainvil. There, we narrowly construed Dorsainvil and held that § 2255 was

ineffective where a Supreme Court decision changed substantive law which could negate



       1
           McLoyd is currently incarcerated at FCI-Fort Dix.

                                              2
a conviction if made retroactive and the prisoner had no prior opportunity to raise the

issue. See Okereke v. United States, 

, 120-21 (3d Cir. 2002). Even a

successful challenge under Booker would not render the conduct for which McLoyd was

convicted non-criminal. Okereke’s similar conclusion with respect to a challenge under

Apprendi v. New Jersey, 

(2000), controls in this situation. McLoyd fails to

show that § 2255 is “inadequate or ineffective.”

       Thus, McLoyd’s petition should be construed as a § 2255 motion. However, such

a motion must be filed in the court which imposed the sentence. § 2255 ¶ 1. Moreover,

since McLoyd has already pursued a § 2255 petition in the District Court for the Eastern

District of North Carolina, he must seek the authorization of the United States Court of

Appeals for the Fourth Circuit. See 28 U.S.C. § 2255 ¶ 8. The District Court for the

District of New Jersey does not have jurisdiction over McLoyd’s § 2255 motion.

Accordingly, we will affirm.2




       2
        We note that Appellant’s submission on appeal is extremely difficult to decipher.
He appears to concede that the District Court properly ruled on his Booker claim, but he
argues that an underlying new claim relating to an amendment of the indictment is
cognizable under § 2241. We take no position on this argument as we generally do not
consider claims not presented to the District Court. See Royce v. Hahn, 

,
125 (3d Cir. 1998).

                                             3