Chad Hatten v. United States of America

BLD-299 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-1737
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CHAD HATTEN,
Appellant
v.
UNITED STATES OF AMERICA
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 07-00330)
District Judge: Honorable Sean J. McLaughlin
____________________________________
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
August 27, 2009
Before: MCKEE, FISHER and CHAGARES, Circuit Judges
( filed: September 21, 2009 )
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OPINION
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PER CURIAM
Chad Hatten appeals from the District Court’s order denying for lack of subject
matter jurisdiction his habeas petition pursuant to 28 U.S.C. § 2241. The Government has

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moved for summary affirmance. Because we agree that Hatten cannot challenge his
federal identity theft conviction with a § 2241 petition, and that he instead must do so
pursuant to 28 U.S.C. §§ 2244 and 2255, we will grant the Government’s motion and
affirm the order of the District Court.
I.
Hatten is currently serving a ninety-month sentence based on his convictions in the
United States District Court for the Southern District of Texas for Fraud in Connection
with Access Devices, Access Device Fraud, and Aggravated Identity Theft. In July 2007,
Hatten filed a § 2255 motion, which was denied on the merits. His request for a
certificate of appealability (“COA”) was also denied. See United States v. Hatten, No.
08-20487 (5th Cir. June 22, 2009).
While his COA request was pending in the Fifth Circuit, Hatten filed the § 2241
petition at issue. Therein, Hatten claimed “actual innocence” of Aggravated Identity
Theft and argued that his sentence for that crime has resulted in an Ex Post Facto Clause
violation. Given that Hatten was being confined in FCI-McKean at the time, the § 2241
petition was transferred from the Southern District of Texas to the United States District
Court for the Western District of Pennsylvania. See Hatten v. United States of America,
No. 07-cv-02927, dkt #4 (S.D. Tx. Nov. 23, 2007).
After the transfer, Hatten moved for summary judgment on his § 2241 petition.
The Magistrate Judge concluded that since Hatten’s “claims challenge the imposition of

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his sentence, rather than the execution of his sentence, a habeas corpus petition filed
under § 2241 is not the appropriate vehicle.” The Magistrate Judge also concluded that
Hatten was not entitled to “the benefit of § 2255’s savings clause.” The District Court
adopted the Magistrate Judge’s report and recommendation, denied Hatten’s motion for
summary judgment, and dismissed his habeas petition for lack of subject matter
jurisdiction. Hatten appealed.
II.
We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 and 28 U.S.C. §
2253(a). A COA is not required to appeal from the denial of Hatten’s § 2241 petition.
See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir. 2009). We exercise plenary review
over the District Court’s legal conclusions, and review its factual findings for clear error.
See Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir. 2002). Summary affirmance is proper
when “it clearly appears that no substantial question is presented or that subsequent
precedent or a change in circumstances warrants such action.” Third Circuit I.O.P. 10.6.
III.
The presumptive means by which a federal prisoner can challenge the validity of
his conviction or sentence is by motion pursuant to 28 U.S.C. § 2255, unless such a
motion would be “inadequate or ineffective.” Okereke v. United States, 307 F.3d 117,
120 (3d Cir. 2002). Lack of success in a previous § 2255 motion, without more, does not
render § 2255 inadequate or ineffective; nor do AEDPA’s restrictions on filing successive

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§ 2255 motions. See Cradle v. United States ex rel. Miner, 290 F.3d 536, 539 (3d Cir.
2002). We agree with the Government that Hatten’s case does not fit within the narrow
class of circumstances where a § 2255 motion would in fact be inadequate or ineffective
to challenge a conviction, and that the District Court properly dismissed Hatten’s § 2241
petition for lack of subject matter jurisdiction.
Therefore, because no “substantial question” is presented by this appeal, we grant
the Government’s motion for summary affirmance and will affirm the judgment of the
District Court. For Hatten’s benefit, we note that should he choose to file a subsequent §
2255 motion, he must obtain authorization to do so in accordance with the procedures
outlined in 28 U.S.C. §§ 2244 and 2255.
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