Richard Vieux v. Troy Williamson

CLD-404 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 07-3147
________________
RICHARD VIEUX,
Appellant
v.
TROY WILLIAMSON
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 07-cv-00645)
District Judge: Honorable John E. Jones, III
_______________________________________
Submitted On Motion For Summary Affirmance
Under Third Circuit LAR 27.4 and I.O.P. 10.6
September 27, 2007
Before: RENDELL, SMITH and JORDAN, Circuit Judges.
(Filed October 12, 2007)
_______________________
OPINION
______________________
PER CURIAM
Richard Vieux appeals pro se from an order of the United States District Court for
the Middle District of Pennsylvania (“the District Court”) dismissing his habeas petition

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1 The federal carjacking statute, 18 U.S.C. § 2119, establishes higher penalties
when the offense results in serious bodily injury (subparagraph (2)) or death
(subparagraph (3)). In Jones, the Supreme Court held that subparagraphs (2) and (3) of
the statute set forth additional elements of the offense and are not merely sentencing
considerations. The elements of subparagraphs (2) and (3) thus must be charged in the
indictment, proved beyond a reasonable doubt, and submitted to a jury for its verdict.
Jones, 526 U.S. at 251-52.
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filed pursuant to 28 U.S.C. § 2241. We will affirm.
The background is set forth in detail in the Magistrate Judge’s report and
recommendation and in the District Court’s memorandum filed as part of the record, so
we will not recount it in great detail. Vieux asserted in his habeas petition that the matter
concerned his 1995 conviction in the United States District Court for the Middle District
of Florida (“sentencing court”) of various crimes, including carjacking resulting in
serious bodily injury and in death. He was sentenced to life imprisonment plus forty-five
years. The Court of Appeals for the Eleventh Circuit (“Eleventh Circuit”) affirmed the
conviction and sentence on April 7, 1998.
On March 5, 1999, Vieux filed a motion under 28 U.S.C. § 2255 to vacate, set
aside or correct his sentence. He later filed a motion to amend his section 2255 motion to
include a claim in light of the Supreme Court’s March 24, 1999 decision in Jones v.
United States, 526 U.S. 227 (1999). The sentencing court denied leave to amend and1
denied the section 2255 motion in August 1999. Vieux filed a notice of appeal, which
was construed as a motion for a certificate of appealability (“COA”). The Eleventh
Circuit denied the motion for a COA. Vieux filed a motion for rehearing, arguing that the

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sentencing court abused its discretion in denying leave to amend his section 2255 motion.
The Eleventh Circuit denied rehearing. In February 2001, the Supreme Court denied
Vieux’s certiorari petition.
In February 2002, Vieux attempted to file another section 2255 motion with the
sentencing court, contending that it was his first section 2255 motion because he had not
been allowed to amend his prior section 2255 motion. The sentencing court denied the
motion as an unauthorized second or successive section 2255, advising that Vieux could
seek the necessary authorization from the Eleventh Circuit. The Eleventh Circuit denied
Vieux’s COA application in December 2002. Vieux’s motion to reconsider and his
subsequent certiorari petitions with the Supreme Court were unsuccessful.
In January 2005, Vieux filed a motion to recall the mandate with the Eleventh
Circuit, which returned the motion to him along with an application form for filing a
second or successive section 2255 motion. Vieux filed the application but maintained
that he was seeking to file his first section 2255 motion. The Eleventh Circuit denied the
application in March 2005.
Next, in September 2005, Vieux returned to the sentencing court and filed a
motion for relief from judgment under Rule 60(b) of the Federal Rules of Civil
Procedure, asserting that he was entitled to relief because he was denied the opportunity
to amend his first section 2255 motion to reflect his Jones claim. The sentencing court
denied the motion. Vieux filed another Rule 60(b) motion, which was denied in February

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2 Vieux was, and is currently, an inmate of the United States Penitentiary at
Lewisburg, Pennsylvania.
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2006. The Eleventh Circuit denied issuance of a COA, and the Supreme Court denied
certiorari in January 2007.
Vieux then filed his section 2241 habeas petition in the District Court, alleging2
that section 2255 was an unavailing remedy for his claims because he has been denied
leave to amend his section 2255 motion. He again presented his claim under Jones that he
was convicted of crimes that were not charged in the indictment. Specifically, he
contends that he was charged with a violation of 18 U.S.C. § 2119(1) (carjacking with
intent to cause death or serious bodily harm), but that he was convicted of and received a
longer sentence for the uncharged violations of section 2119(2) and 2119(3) (carjacking
resulting in serious bodily harm and death, respectively). The Magistrate Judge issued a
report and recommendation to dismiss the section 2241 habeas petition, and Vieux filed
objections. On June 20, 2007, the District Court overruled the objections and dismissed
Vieux’s habeas petition. The District Court concluded that Vieux had failed to
demonstrate that section 2255 is inadequate or ineffective to test the legality of his
detention such that he should be allowed to proceed under section 2241. Vieux appeals.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. In response to the
Court’s letter advising the parties that the appeal would be submitted for possible
summary action, Vieux filed a document in opposition to summary action, with

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attachments. The government has filed a motion to summarily affirm the order of the
District Court. After a careful review of the record, we conclude that the appeal presents
no substantial question. See Third Cir. LAR 27.4 and I.O.P. 10.6. Therefore, we will
grant the government’s motion for summary action.
A section 2255 motion filed in the sentencing court is the presumptive means for a
federal prisoner to challenge the validity of a conviction or sentence. See Davis v. United
States, 417 U.S. 333, 343 (1974); In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997). A
habeas petitioner can seek relief under section 2241 only if the remedy provided by
section 2255 is inadequate or ineffective to test the legality of his detention. See
28 U.S.C. § 2255; In re Dorsainvil, 119 F.3d at 249-51. A section 2255 motion is not
“inadequate or ineffective” merely because the petitioner cannot meet the stringent
gatekeeping requirements of section 2255, Okereke v. United States, 307 F.3d 117, 120
(3d Cir. 2002), or because the sentencing court does not grant relief, Cradle v. United
States ex rel. Miner, 290 F.3d 536, 539 (3d Cir. 2002) (per curiam). We agree with the
District Court’s determination that Vieux’s situation does not render section 2255
inadequate or ineffective. That Vieux has already unsuccessfully pursued a section 2255
motion in the sentencing court and has failed thus far in obtaining authorization from the
Eleventh Circuit to file another section 2255 motion does not show the inadequacy of that

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3 The District Court suggests in its memorandum that Vieux’s avenue for relief
may be to file an application with the Eleventh Circuit to authorize a second or
successive section 2255 motion, while Vieux indicates that he has made that attempt but
was unsuccessful. Either way, our conclusion remains the same.
4 In his submission to this Court, Vieux makes various allegations of bad faith
concerning the sentencing court’s handling of his section 2255 proceedings, stating that
he has been denied full review of his claims. We note that Vieux has had his appeals of
the sentencing court’s decisions, and we will not conduct review of those matters.
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remedy. Nor do the circumstances that Vieux was denied leave to amend the section3
2255 motion and has been unable to challenge the outcome of those proceedings with any
success.4
The government’s motion for summary affirmance is granted. We will summarily
affirm the District Court’s judgment.

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