Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-29-2007

Adams v. Schultz
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1239




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Recommended Citation
"Adams v. Schultz" (2007). 2007 Decisions. Paper 854.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/854


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CLD-270                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 07-1239
                                   ________________

                                  TIMOTHY ADAMS,
                                           Appellant

                                            v.

                               WARDEN SCHULTZ
                      ____________________________________

                    On Appeal From the United States District Court
                             For the District of New Jersey
                              (D.C. Civ. No. 06-cv-03756)
                      District Judge: Honorable Noel L. Hillman
                    _______________________________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  June 14, 2007

           Before: RENDELL, SMITH AND JORDAN, CIRCUIT JUDGES

                                (Filed: June 29, 2007 )
                              _______________________

                                      OPINION
                              _______________________

PER CURIAM

             Timothy Adams appeals from an order dismissing his petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2241. Because we conclude that Adams’ appeal

presents no substantial question, we will summarily affirm.




             In 1995, Adams was convicted of drug charges in the United States District
Court for the Middle District of North Carolina. He was sentenced to life imprisonment.

On appeal, the United States Court of Appeals for the Fourth Circuit affirmed.

                In November 1997, Adams filed a motion to vacate, set aside or correct his

sentence pursuant to 28 U.S.C. § 2255. Ultimately, the District Court denied the motion.

The Fourth Circuit agreed and denied a certificate of appealability. Subsequently, Adams

filed a motion pursuant to Federal Rule of Civil Procedure 60(b). The District Court

denied the motion and the Fourth Circuit affirmed.

                In August 2006, Adams filed a petition for writ of habeas corpus pursuant

to 28 U.S.C. § 2241 in the District of New Jersey.1 In the petition, Adams alleged that he

was actually innocent of the crimes for which he was convicted. He raised the following

claims in the petition: (1) the government used perjured testimony to help obtain the

conviction; (2) trial counsel was ineffective because he had a conflict of interest; (2) trial

counsel was ineffective for failing to investigate and call witnesses; (3) trial counsel was

ineffective for failing to advise Adams whether it was his right to make the final decision

regarding whether to testify at trial; and (4) trial counsel was ineffective in his cross-

examination of witnesses. The District Court dismissed the petition. Adams timely filed

a notice of appeal.




                A federal prisoner’s challenge to the legality of his sentence and conviction

must be raised in a § 2255 motion, except where the remedy under § 2255 would be



   1
       Adams is incarcerated at FCI-Fairton in Fairton, New Jersey.

                                               2
inadequate or ineffective. See 28 U.S.C. § 2255; In re Dorsainvil, 

, 249 (3d

Cir. 1997). “A § 2255 motion is inadequate or ineffective only where the petitioner

demonstrates that some limitation of scope or procedure would prevent a § 2255

proceeding from affording him a full hearing and adjudication on his wrongful detention

claim.” Cradle v. United States ex rel. Miner, 

, 538 (3d Cir. 2002)(per

curiam)(citations omitted). Section 2255 is ineffective or inadequate where a petitioner is

in the unusual position of having “no prior opportunity to challenge his conviction for a

crime that an intervening change in substantive law could negate with retroactive

application.” Okereke v. United States, 

, 120 (3d Cir. 2002)(citation

omitted). However, Section 2255 is not inadequate or ineffective merely because a prior

motion has been unsuccessful or the petitioner is unable to meet the stringent gatekeeping

requirements for filing a second or successive § 2255 motion. See 

(citation omitted).

              Adams’ claims fall within the purview of § 2255 and he has not

demonstrated that § 2255 is inadequate or ineffective. The claims could have been

presented in a § 2255 motion, and raising them in a § 2241 petition amounts to an attempt

to circumvent the gatekeeping provisions of § 2255.2 Therefore, we will affirm.




   2
    To the extent that Adams’ petition was construed as a second or successive § 2255
motion, we agree with the District Court that it lacked jurisdiction to consider the motion
because Adams did not obtain authorization to file a second or successive § 2255 motion.
See 28 U.S.C. § 2255.
                                         3