Jamal Hart v. RONALD HOLTS, Warden

ALD-402 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 07-1741
________________
JAMAL HART,
Appellant
v.
RONALD HOLTS, Warden
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 06-cv-02468)
District Judge: Honorable Edwin M. Kosik
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
Under Third Circuit LAR 27.4 and I.O.P. 10.6
September 27, 2007
BEFORE: SLOVITER, CHAGARES and COWEN, CIRCUIT JUDGES
(Filed: October 4, 2007)
_______________________
OPINION
_______________________
PER CURIAM
Jamal Hart appeals the District Court’s order dismissing his petition filed pursuant
to 28 U.S.C. § 2241. For the reasons below, we will summarily affirm the District
Court’s order.

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1 Hart subsequently sought to challenge his conviction with a motion filed pursuant to
Fed. R. Civ. P. 60(b)(4). We denied Hart’s request for a certificate of appealability to
appeal the District Court’s denial of that motion.
In 1998, the District Court for the Eastern District of Pennsylvania sentenced Hart
to 188 months in prison after a jury convicted him of possession of a firearm by a felon.
We affirmed his conviction and sentence on appeal. Hart then filed a motion pursuant to
28 U.S.C. § 2255. The District Court denied the motion, and we denied Hart’s request for
a certificate of appealability.1
In December 2006, Hart filed a pro se § 2241 petition in the District Court for the
Middle District of Pennsylvania. Hart stated that he recently learned that a non-existent
conviction for simple assault in 1995 was used in determining his prison security
classification. Although he admitted that this conviction was not listed in his pre-
sentence investigation report (PSI), Hart alleged that the sentencing court used the
conviction to sentence him as an armed career criminal under 18 U.S.C. § 924(e). The
District Court dismissed the petition for lack of jurisdiction, and Hart filed a timely notice
of appeal. The government filed a motion for summary affirmance, and Hart, now
represented by counsel, has filed responses.
We have jurisdiction under 28 U.S.C. § 1291 and exercise plenary review over the
District Court’s legal conclusions. Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d
Cir. 2002). Under the explicit terms of § 2255, a § 2241 petition cannot be entertained by
a court unless a §2255 motion would be “inadequate or ineffective.” Id. In Cradle, we
explained that

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a § 2255 motion is inadequate or ineffective only where the petitioner
demonstrates that some limitation of scope or procedure would prevent a § 2255
proceeding from affording him a full hearing and adjudication of his wrongful
detention claim. It is the inefficacy of the remedy, not the personal inability to use
it, that is determinative. Section 2255 is not inadequate or ineffective merely
because the sentencing court does not grant relief, the one-year statute of
limitations has expired, or the petitioner is unable to meet the stringent
gatekeeping requirements of the amended § 2255.
Id. at 538-39 (citations omitted).
Hart argues that because he never had an opportunity to raise this claim previously,
he should be entitled to pursue relief via a § 2241 petition based on our holding in In re
Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). In Dorsainvil, we allowed a prisoner to
proceed under § 2241 because he “had no earlier opportunity to challenge his conviction
for a crime that an intervening change in substantive law may negate.” Id. at 251. Hart’s
claims do not fall within the narrow exception we announced in Dorsainvil. There has
been no substantive change in the law that negates Hart’s conviction. See also Okereke v.
United States, 307 F.3d 117, 120-21 (3d Cir. 2002). Because Hart seeks to challenge his
sentence and has not shown that § 2255 is inadequate or ineffective, he may not proceed
under § 2241.
Moreover, we note that Hart had an opportunity to challenge the convictions used
to sentence him as an armed career criminal. On February 3, 1997, the government filed
a “Notice of Prior Convictions for Enhanced Sentencing Under [18 U.S.C. § 924(e)].”
The government alleged that Hart had four prior convictions for robbery in August 1988,
December 1988, February 1989, and January 1991 as well as a prior conviction for a

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2 These convictions are included in the criminal history Hart submitted with his pro se
opposition to summary action.
3 Before this departure Hart faced a sentence in the guidelines range of 235-293
months.
controlled substance offense in November 1990. 2 At Hart’s February 18, 1998
sentencing, the District Court rejected Hart’s challenge to the use of one robbery
conviction as a crime of violence. Counsel successfully moved for a downward departure
on the basis that Hart’s criminal history category overstated the seriousness of his
criminal record.3 Hart himself argued at sentencing that his prior convictions were
invalid because he was unaware of his right to appeal them. Tr. 2/18/1998 at 28-29. He
also contended that his drug conviction did not meet the criteria to be considered a
controlled substance offense under § 924(e)(2)(a)(ii). Id. at 30-31. In a letter to his
appellate counsel, Hart requested that counsel raise a claim that sentencing counsel
should have argued for a departure downward not only from his criminal history category
but also from his enhanced offense level. In his motion filed pursuant to 28 U.S.C. §
2255, Hart argued, inter alia, that the guilty pleas in three of his prior convictions were
not knowing, intelligent and voluntary, and counsel was ineffective for failing to
investigate them.
In his arguments at sentencing, on appeal, and in his § 2255 motion, Hart
demonstrated that he was actively involved in those proceedings and paying close
attention to the convictions used to sentence him under § 924(e). Hart only disputed the
validity and not the existence of those prior convictions. To be sentenced under 18

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4 At sentencing, the government mentioned that Hart was convicted of simple assault
when he was fourteen years old. Thus, it appears possible that the mistake in the BOP’s
document could be a simple typographical error with respect to the date, i.e., “1995” was
typed instead of “1985.”
5 In the government’s sentencing memorandum, it describes three of Hart’s robbery
convictions and cites to paragraphs 26-29 of the PSI. Hart has only provided the pages of
the PSI which encompass paragraphs 9-21 and 30-34.
6 We note that under Pennsylvania law simple assault is a misdemeanor. See 18
Pa.C.S. § 2701(b).
U.S.C. § 924(e), a defendant must have at least three prior convictions for a violent felony
or a serious drug offense. Hart had five.
While we do not reach the merits of Hart’s claims, we note that Hart cites nothing
to support his claim that the 1995 conviction4 was used to enhance his sentence as an
armed career criminal. Hart has submitted only two pages from his PSI; he omitted those
pages which contain a discussion of his prior convictions.5 In his counseled opposition to
summary action, Hart argues that he was arrested in retaliation for his efforts to exonerate
his father who is on death row. He further asserts that “[a]s the newly discovered
evidence has shown, the retaliatory efforts went so far as to place a non-existent felony
conviction on Mr. Hart’s criminal record so that the court could impose a longer
sentence.” Opp. at 3.6 Hart implies that the courts have concealed the use of this 1995
conviction from him. Opp. at 10. We are deeply concerned by counsel’s making such
serious allegations without providing any proof.
Because Hart has not shown that § 2255 is inadequate or ineffective, the District
Court did not err in dismissing Hart’s § 2241 petition for lack of jurisdiction. Summary

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action is appropriate if there is no substantial question presented in the appeal. See Third
Circuit LAR 27.4. For the above reasons, as well as those set forth by the District Court,
we will summarily affirm the District Court’s order. See Third Circuit I.O.P. 10.6.
Appellee’s motion for summary action is granted. Hart’s pro se motions for an appeal
conference and to disqualify opposing counsel are denied.

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