William R. Underwood v. Warden Karen G. Hogsten; Warden Janine M. Donate

DLD-403 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 07-2893
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WILLIAM R. UNDERWOOD,
Appellant
v.
WARDEN KAREN G. HOGSTEN; WARDEN JANINE M. DONATE
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On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 07-cv-00811)
District Judge: Honorable A. Richard Caputo
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Submitted For Possible Summary Action Under
Third Circuit LAR 27.4 and I.O.P. 10.6
September 27, 2007
Before: BARRY, AMBRO and FISHER, CIRCUIT JUDGES
(Filed: October 17, 2007)
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OPINION
_______________________
PER CURIAM
William R. Underwood appeals the District Court’s dismissal of a habeas corpus
petition he filed pursuant to 28 U.S.C. § 2241. For the reasons set forth below we will
affirm.

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In 1991 Underwood was convicted by the United States District Court for the
Southern District of New York of conducting or participating in a racketeering enterprise,
a racketeering conspiracy, a narcotics conspiracy, and a continuing criminal enterprise
(CCE); he is serving a life sentence. After the Second Circuit Court of Appeals affirmed
his conviction and sentence, United States v. Underwood, 932 F.2d 1049 (2d Cir. 1991),
Underwood filed a motion pursuant to 28 U.S.C. § 2255 challenging his sentence. The
District Court denied the motion and the Second Circuit Court of Appeals once again
affirmed. Underwood v. United States, 15 F.3d 16 (2d Cir. 1993). In 1997 Underwood
sought authorization to file another § 2255 motion, but his application was denied.
Underwood v. United States, 166 F.3d 84, 85 (2d Cir. 1999).
In 2007 Underwood sought relief via § 2241 instead, filing a habeas corpus
petition challenging his sentence under Blakely v. Washington, 542 U.S. 296 (2004),
United States v. Booker, 543 U.S. 220 (2005), and Cunningham v. California, 127 S. Ct.
856 (2007), and challenging his CCE conviction and sentence under Richardson v. United
States, 526 U.S. 813 (1999). The Magistrate Judge recommended dismissal of
Underwood’s petition because his arguments belong in a § 2255 motion and cannot be
brought under § 2241 because Underwood has not shown that the “safety valve” language
(“inadequate or ineffective”) of § 2255 applies to his case: he is not “a prisoner who had
no earlier opportunity to challenge his conviction for a crime that an intervening change
in substantive law may negate.” In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997).

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1We have jurisdiction pursuant to 28 U.S.C. § 1291 and review the District Court’s
judgment de novo. Okereke v. United States, 307 F.3d 117 (3d Cir. 2002).
2As the Second Circuit Court of Appeals explained on direct appeal:
The government’s evidence at trial showed that from the 1970's until his
arrest in late 1988, Underwood supervised and controlled an extensive and
extremely violent narcotics trafficking operation involving a number of
murders and conspiracies to murder, a highly organized network for the
street-level distribution of heroin and the importation of large quantities of
heroin from Europe to the United States.
United States v. Underwood, 932 F.2d 1049, 1051 (2d Cir. 1991).
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Underwood filed objections, but the District Court adopted the Magistrate Judge’s Report
and Recommendation and dismissed the petition. This appeal followed.1
We agree with the District Court. As we have explained, the “safety valve”
provision of § 2255 does not permit a prisoner to resort to § 2241 instead of § 2255 unless
an intervening change in the law “potentially made the crime for which the petitioner was
convicted non-criminal.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002).
None of the cases on which Underwood relies affects the criminality of the actions
underlying his convictions. Blakely, Booker and Cunningham obviously do not because
they address sentencing concerns only. But neither does Richardson. There the Court
merely held that the jury in a CCE case must unanimously agree not only that the
defendant committed some “continuing series of violations” but also that he committed
each of the individual violations necessary to make up that “continuing series.” The
holding has no bearing on whether Underwood’s actions2 violated the CCE statute; “he

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cannot advance a non-frivolous claim that, after Richardson, he is actually innocent of
conducting a criminal enterprise.” Kramer v. Olson, 347 F.3d 214, 219 (7th Cir. 2003).
In short, the appeal does not present a substantial issue. Accordingly, we will
summarily affirm the judgment of the District Court.

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