Ewan Bryce v. WARDEN JERRY C. MARTINEZ On Appeal from the United States District Court for the…

CLD-255 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1730
___________
EWAN BRYCE,
Appellant
v.
WARDEN JERRY C. MARTINEZ
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 09-cv-00270)
District Judge: Honorable Edwin M. Kosik
____________________________________
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
July 16, 2009
Before: RENDELL, HARDIMAN AND VAN ANTWERPEN, Circuit Judges
(Opinion filed: August 6, 2009)
_________
OPINION
_________
PER CURIAM
Appellant Ewan Bryce appeals from an order of the District Court dismissing his
habeas corpus petition under 28 U.S.C. § 2241 for lack of jurisdiction. For the reasons

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“The murder case went to trial, with [Bryce] taking the stand . . . Bryce admitted his1
involvement in cocaine trafficking (which he had denied during the drug case trial), but
denied killing [the confidential informant].” United States v. Bryce, 287 F.3d 249, 252
(2d Cir. 2002).
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that follow, we will dismiss the appeal.
In August 1998, Bryce was sentenced to concurrent terms of 124 months of
imprisonment based on federal convictions for conspiracy to distribute, and possession
with intent to distribute, cocaine. Bryce appealed, and while his appeal was pending, he
was indicted for murdering the prosecution’s confidential informant in his drug case. A1
jury found Bryce not guilty of the murder. Thereafter, the United States Court of Appeals
for the Second Circuit “reverse[d] Bryce’s conviction for possession with intent to
distribute and distribution (Count Two), affirm[ed] the district court’s judgment as to
Bryce’s conspiracy conviction (Count One), and remand[ed] for resentencing.” United
States v. Bryce, 208 F.3d 346, 356 (2d Cir. 1999).
A hearing was held pursuant to the remand, after which the district court judge,
using a preponderance of the evidence standard, found that Bryce had murdered the
confidential informant. The district court judge used that conduct to increase Bryce’s
offense level for sentencing purposes, and thereafter increased Bryce’s sentence on the
conspiracy conviction from 124 months to 240 months of imprisonment. The Second
Circuit affirmed. Bryce then filed an unsuccessful motion to vacate his sentence pursuant
to 28 U.S.C. § 2255. His request to file a second or successive § 2255 motion was

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denied.
Bryce filed the instant § 2241 petition in January 2009, challenging the sentencing
enhancement on his conspiracy conviction following the Second Circuit’s remand. The
District Court concluded that Bryce “has not demonstrated that the remedy under § 2255
is inadequate or ineffective to test the legality of his detention” and dismissed the § 2241
petition for lack of jurisdiction. Bryce appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Having granted Bryce leave to
proceed in forma pauperis, we must dismiss his appeal pursuant to 28 U.S.C.
§ 1915(e)(2)(B) if it is frivolous, i.e., if it has no arguable basis in law. See Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Our review of the District Court’s decision
dismissing Bryce’s § 2241 petition is plenary. See Cradle v. United States ex rel. Miner,
290 F.3d 536, 538 (3d Cir. 2002).
For substantially the reasons given by the District Court, we conclude that the
District Court lacked jurisdiction over Bryce’s § 2241 petition. The presumptive means
by which a federal prisoner can challenge the validity of his conviction or sentence is a
motion pursuant to 28 U.S.C. § 2255. See Okereke v. United States, 307 F.3d 117, 120
(3d Cir. 2002); see also Davis v. United States, 417 U.S. 333, 343 (1974). Nothing in the
record or the arguments put forth in his notice of appeal suggests that Bryce’s case fits
within the narrow class of circumstances where a § 2255 motion would be inadequate or

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In fact, every case cited by Bryce either counters his assertion that he is entitled to2
use § 2241 to collaterally attack his sentence, or does not concern the issues relevant to
his appeal.
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ineffective to challenge his conviction or sentence. On that point, we emphasize that2
lack of success in a previous § 2255 motion does not render § 2255 inadequate or
ineffective. See Cradle, 290 F.3d at 539.
Accordingly, because this appeal presents no arguable legal issue, we will dismiss
it pursuant to 28 U.S.C. § 1915(e)(2)(B).

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