Jerry Frith v. UNITED STATES OF AMERICA On Appeal from the United States District Court for the…

1
HLD-163 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3071
___________
JERRY FRITH,
Appellant
v.
UNITED STATES OF AMERICA
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 09-cv-01051)
District Judge: Honorable Robert B. Kugler
____________________________________
Submitted for Determination Whether a Certificate of Appealability Should Issue and 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
September 30, 2009
Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges
(Opinion filed October 13, 2009)
_________
OPINION
_________
PER CURIAM
Jerry Frith appeals pro se from an order of the United States District Court
for the District of New Jersey dismissing for lack of jurisdiction his habeas petition filed

-- 1 of 3 --

Frith was sentenced to 60 months in prison for using a firearm during the1
commission of a drug trafficking offense, see 18 U.S.C. § 924(c)(1). That sentence ran
consecutively to concurrent sentences for conspiracy to distribute a controlled substance
(121 months in prison), 18 U.S.C. §§ 841(b)(1)(A) & 846, and possession of a firearm by
a convicted felon (120 months in prison), see 18 U.S.C. § 922(g)(1).
In Whitley, the Second Circuit found that a consecutive ten-year minimum sentence2
for discharge of a firearm pursuant to 18 U.S.C. § 924(c)(1)(A)(iii), did not apply to a
defendant who was also subject to a fifteen-year minimum sentence provided by the
Armed Career Criminal Act’s “three strikes” rule under §§ 922(g)(1) and 924(e). See 529
F.3d at 158. We recently rejected this approach. See United States v. Abbott, 574 F.3d
203, 206-11 (3d Cir. 2009).
2
pursuant to 28 U.S.C. § 2241. For the following reasons, we will summarily affirm.
In 2002, Frith pleaded guilty in the United States District Court for the
Southern District of New York to various drug and firearms offenses. He was sentenced
to 181 months in prison. Frith apparently did not file a direct appeal, and his motion1
pursuant to 28 U.S.C. § 2255 was unsuccessful. In March 2009, Frith filed the present §
2241 petition, alleging that the imposition of a consecutive sentence violated the holding
of United States v. Whitley, 529 F.3d 150 (2d Cir. 2008). The District Court dismissed2
the petition, concluding that Frith failed to demonstrate that § 2255 would be “inadequate
or ineffective” to test the legality of his detention. Frith next filed a timely motion for
reconsideration, which the District Court denied. Frith appealed.
We have jurisdiction over the appeal pursuant to 28 U.S.C. §§ 1291 and
2253(a). We exercise plenary review over the District Court’s dismissal. See Okereke v.
United States, 307 F.3d 117, 119 (3d Cir. 2002). Summary affirmance is proper when “it
clearly appears that no substantial question is presented or that subsequent precedent or a

-- 2 of 3 --

A certificate of appealability is denied, as one is not required to appeal from the3
denial of Frith’s § 2241 petition. See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir.
2009).
3
change in circumstances warrants such action.” 3d Cir. I.O.P. 10.6.
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, 307 F.3d at 120. 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 § 2255 motions. See
Cradle v. United States ex rel. Miner, 290 F.3d 536, 539 (3d Cir. 2002). We agree with
the District Court that dismissal on jurisdictional grounds was proper because Frith’s case
does not fit within the narrow class of circumstances where a § 2255 motion would be
inadequate or ineffective to challenge his conviction. See Robinson v. Johnson, 313 F.3d
128, 139-40 (3d Cir. 2002).
Because this appeal does not present a substantial question, we will
summarily affirm the District Court’s order dismissing Frith’s § 2241 petition. See 3d3
Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.

-- 3 of 3 --