No: 05-2592 United States of America v. Curtis Marshall Dixon

BPS-308 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO: 05-2592
UNITED STATES OF AMERICA
v.
CURTIS MARSHALL DIXON,
Appellant
_______________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. No. 00-cr-00146)
(criminal treated as civil)
District Judge: Honorable Marvin Katz
_______________________________________
Submitted Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
July 14, 2005
Before: RENDELL, FISHER AND VAN ANTWERPEN, CIRCUIT JUDGES
(Filed: July 29, 2005 )
_______________________
OPINION
_______________________
PER CURIAM
Appellant Curtis Dixon appeals from the denial of a motion under Federal Rule of
Civil Procedure 60(b) to vacate the District Court’s order denying his motion pursuant to
28 U.S.C. § 2241 seeking to quash two search warrants. We will affirm.
In 2000, a federal jury convicted Dixon of drug and firearm offenses. The District

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Court eventually sentenced him to 135 months. We affirmed the conviction and sentence
on May 14, 2002. At some point, Dixon was then transferred to a federal corrections
center in Ohio. On December 24, 2003, he brought a habeas petition under 28 U.S.C. §
2241 seeking to quash the search warrants which led to his conviction because the search
warrants allegedly lacked probable cause. On January 5, 2004, the District Court denied
the petition because Dixon’s claims are not cognizable under § 2241, but must be brought
under 28 U.S.C. § 2255.
Dixon appealed, which we dismissed for lack of jurisdiction because the appeal
was untimely. He returned to the District Court and filed a motion to vacate the District
Court’s prior order under Rule 60(b). The District Court denied the motion because it
concluded that Dixon was attempting to bring a second or successive motion under 28
U.S.C. § 2255. Dixon again filed a notice of appeal from the order denying his Rule
60(b) motion.
We review the denial of a motion under Rule 60(b) for abuse of discretion. See
Pridgen v. Shannon, 380 F.3d 721, 725 (3d Cir. 2004). Initially, the District Court
wrongly denied Dixon’s Rule 60(b) motion on the basis that it was in fact a second or
successive § 2255 motion. Dixon has never brought a prior § 2255 motion, nor did the
District Court construe his § 2241 petition as such. Dixon’s claims for relief, however,
are not cognizable under § 2241 because “§ 2255 must be used to raise a challenge to the
conviction or sentence unless that section is ‘inadequate or ineffective.’” See Okereke v.

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Dixon was advised that this Court would consider whether to issue a certificate of1
appealability. To the extent Dixon wishes to proceed under § 2241, a certificate of
appealability is not necessary. See 28 U.S.C. § 2253(c); Padilla v. United States,
__F.3d__, No. 04-50567, slip op. at 1 (5th Cir. July 8, 2005).
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United States, 307 F.3d 117, 120 (3d Cir. 2002) (citing In re Dorsainvil,119 F.3d 245, 251
(3d Cir. 1997)). We have stated that § 2255 is not inadequate simply because the prisoner
is unable to meet the section’s strict gate keeping requirements. Dorsainvil, 119 F.3d at
251. Dixon fails to argue that he would suffer manifest injustice if his § 2241 petition
were precluded.
For the foregoing reasons, the District Court did not abuse its discretion in
dismissing Dixon’s Rule 60(b) motion. Accordingly, we will affirm. Appellant’s motion
for appointment of counsel is denied.1

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