Terry Perkins v. Ronnie Holt, 3rd Cir. (2010)

DLD-036
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-3036
_____________
TERRY L. PERKINS,
Appellant
v.
RONNIE HOLT, WARDEN
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 09-CV-02508)
District Judge: Honorable John E. Jones, III
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. 1915(e)(2)(B)

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
November 12, 2010
Before: BARRY, FISHER and STAPLETON, Circuit Judges
(Opinion filed : December 3, 2010)
_________
OPINION
_________
PER CURIAM
Terry L. Perkins appeals from the order of the United States District Court for the
Middle District of Pennsylvania dismissing his habeas petition filed under 28 U.S.C.
' 2241. We will affirm the District Courts order.
Perkins, a federal prisoner incarcerated in Pennsylvania, pleaded guilty to a drug
charge and to possession of a firearm by a convicted felon, and was sentenced on March
14, 2000, by the United States District Court for the District of Connecticut. Perkins filed
an unsuccessful direct appeal. On July 9, 2001, he filed his first motion pursuant to 28
U.S.C. ' 2255, which was denied on September 6, 2002. The United States Court of
Appeals for the Second Circuit denied a certificate of appealability. Perkins subsequently
filed two more unsuccessful 2255 motions, two unsuccessful motions for reduction of
sentence pursuant to 18 U.S.C. 3582(c)(2), and an unsuccessful Petition for Writ of
Error Coram Nobis in state court.
On December 21, 2009, Perkins filed the ' 2241 petition at issue here, raising the
claim that his federal sentence was unconstitutionally enhanced because the enhancement
was based on an uncounseled state court conviction. Perkins argued that [t]here can be
no time limitations or procedural bar to correcting the Sixth Amendment violation of
being convicted in the absence of an attorney to defend him, as set forth in Gideon v.
Wainwright, 372 U.S. 335 (1963). Petition, p.5. The District Court denied the petition.
We have appellate jurisdiction pursuant to 28 U.S.C. ' 1291.
As the District Court properly noted, a section 2255 motion filed in the sentencing
court is the presumptive means for a federal prisoner to challenge the validity of a
conviction or sentence. See Davis v. United States, 417 U.S. 333, 343 (1974); In re
Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997). A federal prisoner challenging his
conviction can seek relief under section 2241 only if the remedy provided by section
2255 is inadequate or ineffective to test the legality of his detention. See 28 U.S.C.
2
' 2255; In re Dorsainvil, 119 F.3d at 249-51. Perkins argues that he cannot challenge the
state court conviction under 2254, since he is no longer in custody for that violation.
He argues that a state court conviction cannot be invalidated via a 2255 motion, 1 and
that he thus must be allowed to proceed via 2241. Perkins argues that where there is a
Gideon violation, no procedural bars apply, but his argument is refuted by the very cases
he cites. For example, in Daniels, the Court held that [a] defendant may challenge a
prior conviction as the product of a Gideon violation in a 2255 motion, but generally
only if he raised that claim at his federal sentencing proceeding. Similarly, in
Lackawanna County District Attorney v. Coss, 532 U.S. 394, 404 (2001), the Court held
that a 2254 petitioner can challenge an expired state sentence used to enhance a current
state sentence where the prior conviction was the product of a Gideon violation, but that,
[a]s with any 2254 petition, the petitioner must satisfy the procedural prerequisites for
relief including, for example, exhaustion of remedies. Thus, a Gideon violation does not
eliminate the need to follow the proper procedures.
A section 2255 motion is not inadequate or ineffective merely because the
petitioner cannot meet the stringent gatekeeping requirements of section 2255, Okereke
v. United States, 307 F.3d 117, 120 (3d Cir. 2002), or because the sentencing court does
not grant relief, Cradle v. United States ex rel. Miner, 290 F.3d 536, 539 (3d Cir. 2002)
(per curiam). Rather, the safety valve provided under section 2255 is extremely narrow
and has been held to apply in unusual situations, such as those in which a prisoner has
UButU UseeU discussion of UDaniels v. United StatesU, 532 U.S. 374, 382
3
had no prior opportunity to challenge his conviction for a crime later deemed to be
non-criminal by an intervening change in law. See Okereke, 307 F.3d at 120 (citing In re
Dorsainvil, 119 F.3d at 251).
Perkins situation is not the rare one rendering section 2255 inadequate or
ineffective. Perkins has not been convicted of an offense that was later found to be noncriminal. Instead, Perkins raises arguments concerning his sentence that could have been
raised at his federal sentencing proceeding, on direct appeal, or in his ' 2255 motion.
That Perkins has already unsuccessfully pursued a section 2255 motion in the sentencing
court and now faces a statutory bar to filing another one does not show the inadequacy of
that remedy.
We have considered the record and Perkins arguments in his memoranda in
opposition to summary action. Because no substantial question is presented by this
appeal, we will summarily affirm the District Court=s judgment. See Third Circuit LAR
27.4 and I.O.P. 10.6.2
(2001), UinfraU.
2
Perkins appeal of the July 9, 2010, District Court order dismissing his motion
for reconsideration is dismissed as moot, as the District Court later agreed to
consider his motion for reconsideration. The District Court order entered October
12, 2010 will be affirmed, as the Court did not abuse its discretion in denying
Perkins motion for reconsideration. Perkins motion to hold the case in abeyance
is denied as moot. His motion for appointment of counsel is denied.
4

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DLD-036

Submitted for Possible Dismissal Pursuant to 28 U.S.C. 1915(e)(2)(B)

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