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


8-25-2006

Benjamin v. Miner
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2245




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Recommended Citation
"Benjamin v. Miner" (2006). 2006 Decisions. Paper 553.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/553


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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 06-2245
                                   ________________

                                TREVOR BENJAMIN,
                                       Appellant

                                            vs.

                            JONATHAN MINER, Warden
                      ____________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                              (D.C. Civ. No. 06-cv-00607)
                      District Judge: Honorable James M. Munley
                    _______________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   August 23, 2006
             Before: FISHER, ALDISERT, and WEIS, CIRCUIT JUDGES
                               (Filed August 25, 2006)
                             _______________________

                                     OPINION
                              _______________________

PER CURIAM.

             Trevor Benjamin appeals from the District Court’s order dismissing a

petition he filed pursuant to 28 U.S.C. § 2241. As explained below, we will affirm.1




   1
     We have jurisdiction under 28 U.S.C. § 1291; our review is plenary. Okereke v.
United States, 

(3d Cir. 2002).
              Benjamin pled guilty in the United States District Court for the District of

Maryland to armed bank robbery and use of a firearm in the commission of a felony; he is

serving a sentence of 248 months’ imprisonment. On appeal Benjamin raised one issue

only, concerning the factual basis for the court’s restitution order. The United States

Court of Appeals for the Fourth Circuit vacated his sentence on that issue only and

remanded for further proceedings. United States v. Benjamin, 

(4th Cir.

1997) (table). In 1999 Benjamin filed a habeas corpus petition pursuant to 28 U.S.C.

§ 2241 in the United States District Court for the Middle District of Pennsylvania, which

dismissed the petition with instructions to resubmit it as a motion pursuant to 28 U.S.C.

§ 2255 in the District of Maryland. Benjamin did so, but the motion was dismissed as

untimely.

              In 2006 Benjamin filed another section 2241 petition in the Middle District

of Pennsylvania, alleging ineffective assistance of counsel and that the denial of his right

to a speedy trial deprived the court of jurisdiction to convict him. The District Court

dismissed the petition, explaining that the proper means of presenting such claims is a

section 2255 motion filed in the sentencing court, that Benjamin may resort to section

2241 only if section 2255 is inadequate or ineffective, and that section 2255 was not

rendered inadequate or ineffective merely by Benjamin’s lack of success with his

previous section 2255 motion or by the restrictions on filing successive section 2255

motions. Citing Cradle v. United States ex rel. Miner, 

(3d Cir. 2002), the

                                              2
court specifically rejected Benjamin’s argument that his jurisdictional challenge may be

brought at any time.

              We fully concur with the District Court’s analysis. Benjamin must present

his claims through a section 2255 motion filed in the United States District Court for the

District of Maryland; and because he has already filed such a motion, he must first obtain

permission from the Fourth Circuit Court of Appeals. See 28 U.S.C. §§ 2244 and 2255.

Accordingly, we will affirm the judgment of the District Court.




                                             3