Frankie Dean Thomas v. JONATHAN C. MINER, Warden; UNITED STATES MARSHALS

CLD-328 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 07-1854
________________
FRANKIE DEAN THOMAS,
Appellant
v.
JONATHAN C. MINER, Warden; UNITED STATES MARSHALS
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(M.D. Pa. Civ. No. 07-cv-00422)
District Judge: Honorable Sylvia H. Rambo
_______________________________________
Submitted For a Decision on the Issuance of a Certificate of Appealability or for Possible
Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
July 26, 2007
Before: RENDELL, SMITH AND JORDAN, CIRCUIT JUDGES
(Filed: August 21, 2007)
_______________________
OPINION
_______________________
PER CURIAM
Frankie Thomas, a federal prisoner, appeals pro se from the District Court’s order

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A certificate of appealability is not required to appeal the denial of a § 2241 petition,1
which is how the District Court appears to have construed Thomas’s petition. See United
States v. Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000).
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denying his petition for a writ of habeas corpus, which he had purported to file under 28
U.S.C. § 2241 instead of § 2255. The District Court’s order denying relief was based in
part on the merits of what it construed as a § 2241 claim. Because we conclude that
Thomas’s petition must be construed as an unauthorized second or successive § 2255
petition, we will summarily vacate the District Court’s order and direct the District Court
to enter an order dismissing Thomas’s petition for lack of jurisdiction.1
Thomas began serving a 322-month sentence for bank robbery and a related crime
in 1997. Since then, he has filed at least six § 2255 motions, at least two putative § 2241
petitions, and a series of applications with this Court under § 2244 seeking an order
authorizing the District Court to consider additional § 2255 motions. Each of these
filings has been denied.
Thomas purported to file the petition at issue here, which again challenges the
legality of his conviction and sentence, under § 2241. Federal prisoners, however,
generally may bring such challenges only under § 2255, which means that they must
satisfy the gate-keeping requirements of that section and § 2244 before filing a second or
successive § 2255 motion. See Okereke v. United States, 307 F.3d 117, 120 (3d Cir.
2002). There is a limited exception allowing federal prisoners to proceed under § 2241 if
a motion under § 2255 would be “inadequate or ineffective” to protect the prisoner’s

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rights. Cradle v. United States, 290 F.3d 536, 538-39 (3d Cir. 2002); In re Dorsainvil,
119 F.3d 245, 251 (3d Cir. 1997). In Dorsainvil, for example, we allowed a prisoner to
proceed under § 2241 when, after his first § 2255 petition had been denied, the Supreme
Court ruled that conduct of the kind in which he had been found to engage was not
criminalized by the statute under which he had been convicted. See id. at 252. In
addition, federal prisoners may proceed under § 2241 when their challenge is directed to
the execution, as opposed to the validity, of their sentence. See, e.g., United States v.
Eakman, 378 F.3d 294, 297 (3d Cir. 2004).
None of Thomas’s claims here qualifies under either approach. Thomas claims
that his conviction is void because, in 1997, the return on his judgment of conviction was
signed by a Lieutenant instead of a United States Marshal. He also claims that the
District Court’s imposition of consecutive terms of imprisonment was unlawful, and
appears to argue that his indictment and conviction are void because the government did
not offer evidence that he was an “enemy combatant,” which he contends is a prerequisite
to the application of the Antiterrorism and Effective Death Penalty Act of 1996.
These claims neither fit within the narrow Dorsainvil exception nor challenge the
execution of Thomas’s sentence. Thus, the District Court should have construed
Thomas’s petition as an unauthorized second or successive § 2255 motion over which it
lacked jurisdiction. See Okereke, 307 F.3d at 120-21. The District Court did note that
one of Thomas’s claims could be brought only under § 2255, but denied his others on the

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merits. Accordingly, we will vacate the District Court’s order and remand with an
instruction to enter an order dismissing his petition for lack of jurisdiction.
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