Speight v. Nash

¶1 OPINION

¶2 Cearful Speight filed a petition pursuant to 28 U.S.C. § 2241 to challenge his conviction and sentence for conspiracy to distribute cocaine and crack in violation of 21 U.S.C. §§ 841 & 846. He claimed that his indictment was void because he was not therein charged with an independent substantive offense; that the trial court, in effect, amended the indictment to include an aggravating offense at the sentencing phase; and that the trial court enhanced his sentence using facts not found by the jury or admitted by Speight. The District Court, determining that 28 U.S.C. § 2255 was not an inadequate or ineffective means by which Speight could bring his claims, dismissed Speight’s petition. Speight filed a motion for reconsideration, which was denied. Speight appeals. Because this appeal presents no substantial question, we will summarily affirm.

¶3 Speight cannot bring his petition under 28 U.S.C. § 2241, because a motion to challenge his conviction and sentence pursuant to 28 U.S.C. § 2255 is not “inadequate or ineffective.” 28 U.S.C. § 2255 (2005). Although Speight’s claims appear at first blush to be based on Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348,147 L.Ed.2d 435 (2000), and Apprendi’s progeny, Speight purports to ground his arguments in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). No matter which of these cases he relies on, 28 U.S.C. § 2255 is not an inadequate or ineffective way to bring his claims. See Okereke v. United States, 307 F.3d 117, 120-21 (3d Cir.2002); United States ex rel Leguillou v. Davis, 212 F.2d 681, 684 (3d Cir.1954). Therefore, the District Court properly dismissed Speight’s petition for lack of jurisdiction and declined to grant his motion for reconsideration. 1

¶4 For the reasons stated above, the District Court’s orders will be summarily affirmed.