DAMON ELLIOT, A Real Man, Appearing In Propria Personam, As a Living Being v. UNITED STATES OF AMERICA On Appeal from the United States District Court for the…

ALD-116 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 20-2387
___________
DAMON ELLIOT, A Real Man,
Appearing In Propria Personam, As a Living Being,
Appellant
v.
UNITED STATES OF AMERICA
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 1-19-cv-19111)
District Judge: Robert B. Kugler
____________________________________
Submitted on Appellee’s Motion for Summary Action
Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
March 11, 2021
Before: MCKEE, GREENAWAY, JR., and BIBAS, Circuit Judges
(Opinion filed: May 25, 2021)
_________
OPINION*
_________
PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Damon Elliot appeals pro se from the District Court’s order dismissing his petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The Government has filed a
motion for summary affirmance. For the following reasons, we grant the Government’s
motion and will summarily affirm the District Court’s order.
I.
In 1997, a jury sitting in the United States District Court for the District of
Maryland found Elliot guilty of aggravated sexual assault. The District Court sentenced
him to a term of 189 months’ imprisonment, followed by five years’ supervised release.1
Upon review, the United States Court of Appeals for the Fourth Circuit affirmed the
conviction and sentence. Elliot later returned to the District of Maryland and filed a
motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The
District Court denied relief and the Fourth Circuit denied his request for a certificate of
appealability. Elliot then unsuccessfully pursued relief in the District Court through a
number of motions construed as unauthorized second or successive § 2255 motions.
In October 2019, Elliot filed a § 2241 habeas petition in the District of New
Jersey, where he is incarcerated. In his petition, Elliot essentially claimed that his trial
attorney provided ineffective assistance by: (1) representing him without his
authorization at trial, on direct appeal, and in his initial § 2255 motion; and (2) failing to
1 Although Elliot has completed his term of imprisonment, he has not yet begun to serve
his term of supervised release. He remains imprisoned because of an additional
conviction, the details of which are familiar to the parties.

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object at trial “to the speedy trial violation, Brady violation, jury instructions, and to the
Government witness (Pamela Cochran) testimony and exhibits,” and failing to raise these
errors on direct appeal or in his initial § 2255 motion. Pet. ¶¶ 10(c), 14, ECF No. 6.
The District Court screened the petition pursuant to Rule 4 of the Rules Governing
Habeas Corpus Cases and concluded that Elliot’s claims did not qualify for § 2255
“safety valve” relief via § 2241. Therefore, the District Court dismissed the petition for
lack of jurisdiction.
Elliot appealed. After he filed his brief, which included a request for appointment
of counsel, the Government moved for summary affirmance, see 3d Cir. L.A.R. 27.4, and
to be relieved from filing a brief, see id. 31.2. Elliot opposes the Government’s motion
and again moves for appointment of counsel.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a).
We exercise plenary review over the District Court’s legal conclusions and apply a
clearly erroneous standard to its factual findings. See Ruggiano v. Reish, 307 F.3d 121,
126-27 (3d Cir. 2002). We may summarily affirm when no substantial question is
presented by an appeal. 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.
III.
A motion filed under § 2255 in the sentencing court is the presumptive means for
a federal prisoner to challenge the validity of a conviction or sentence. Okereke v.

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United States, 307 F.3d 117, 120 (3d Cir. 2002). “[U]nder the explicit terms of 28 U.S.C.
§ 2255, unless a § 2255 motion would be ‘inadequate or ineffective,’ a habeas corpus
petition under § 2241 cannot be entertained by the court.” Cradle v. United States ex rel.
Miner, 290 F.3d 536, 538 (per curiam) (quoting § 2255(e)). “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.” Id. This exception is narrow and
applies in only rare circumstances.2 See In re Dorsainvil, 119 F.3d at 251–52.
The District Court correctly concluded that Elliot’s claims do not fit within the
narrow class for which a § 2255 motion would be inadequate or ineffective. Elliot
contends that his attorneys provided ineffective assistance throughout his trial, appeal,
and first § 2255 proceedings. A motion under § 2255 is the appropriate means to
challenge the constitutionality of his detention based on ineffective assistance of counsel;
a § 2255 motion is not “inadequate or ineffective” merely because Elliot cannot meet the
stringent gatekeeping requirements of § 2255(h).3 See Okereke, 307 F.3d at 120.
2 This Court has recognized only one situation in which the exception applies: when a
court’s subsequent statutory interpretation renders the defendant’s conduct no longer
criminal and he did not have an earlier opportunity to raise the claim. See Bruce v.
Warden Lewisburg USP, 868 F.3d 170, 180 (3d Cir. 2017); In re Dorsainvil, 119 F.3d
245, 251–52 (3d Cir. 1997).
3 Elliot also made a bare assertion that he is actually innocent. He did not include any
further explanation or support for this claim, and he did not demonstrate that he was
entitled to § 2241 relief on this basis.

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IV.
Accordingly, we grant the Government’s motion and will summarily affirm the
District Court’s order. The Government’s motion to be relieved from filing a brief is
granted. Elliot’s motions for appointment of counsel are denied.

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