Shabbar Rafiq v. Warden Allenwood FCI

• Court: Court of Appeals for the Third Circuit
• Decided: December 28, 2022
• Docket: 22-2662
• Status: Unpublished

Opinion

ALD-042 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 22-2662 ___________

SHABBAR RAFIQ, Appellant

v.

WARDEN ALLENWOOD FCI ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 1:22-cv-01317) District Judge: Honorable Jennifer P. Wilson ____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 December 1, 2022 Before: HARDIMAN, RESTREPO, and BIBAS, Circuit Judges

(Opinion filed: December 28, 2022) _________

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. Shabbar Rafiq appeals pro se from an order of the District Court dismissing his

petition for a writ of habeas corpus under 28 U.S.C. § 2241. For the reasons that follow,

we will summarily affirm.

I.

In 2016, Rafiq pleaded guilty in the United States District Court for the Northern

District of Texas to one count of conspiracy to distribute a controlled substance and

controlled substance analogue in violation of 21 U.S.C. § 846. He was sentenced to 144

months’ incarceration. Rafiq appealed, challenging a forfeiture order entered by the

District Court, and the Fifth Circuit affirmed. See United States v. Rafiq, 745 F. App’x

241, 242 (5th Cir. 2018) (per curiam). Rafiq then filed a motion to vacate his sentence

pursuant to 28 U.S.C. § 2255 in the Northern District of Texas, raising several claims of

ineffective assistance of counsel. The District Court denied his motion, and after

granting a certificate of appealability with respect to one claim—that counsel was

ineffective for failing to advise Rafiq of the immigration consequences of his guilty

plea—the Fifth Circuit affirmed. See United States v. Rafiq, No. 20-11168, 2022 WL

2387348 (5th Cir. July 1, 2022). Rafiq later unsuccessfully sought authorization from the

Fifth Circuit to file a second or successive § 2255 motion. See In re Shabbar Rafiq, C.A.

No. 22-10679 (order entered July 28, 2022).

Shortly thereafter, Rafiq filed this § 2241 petition in the United States District

Court for the Middle District of Pennsylvania, the district in which he is incarcerated,

2 appearing to raise claims of ineffective assistance of counsel and a claim that he is

actually innocent based on laboratory reports showing an absence of controlled

substances in the incense forming the basis of his conviction. Rafiq argued that he could

seek relief under § 2241 because the sentencing court did not consider all his claims in

reviewing his § 2255 motion, and because he is actually innocent. The District Court

dismissed the petition for lack of jurisdiction. Rafiq now appeals.

II.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.1 We exercise

plenary review over the District Court’s legal conclusions and review factual findings for

clear error. See Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002)

(per curiam). We may summarily affirm if the appeal fails to present a substantial

question. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.

III.

“Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which

federal prisoners can challenge their convictions or sentences.” Okereke v. United States,

307 F.3d 117, 120 (3d Cir. 2002). A habeas corpus petition under § 2241 accordingly

“shall not be entertained” unless a § 2255 motion would be “inadequate or ineffective to

test the legality of [petitioner’s] detention.” 28 U.S.C. § 2255(e). “A § 2255 motion is

1 Rafiq does not need a certificate of appealability to proceed. See Reese v. Warden Phila. FDC, 904 F.3d 244, 246 (3d Cir. 2018).

3 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.” Cradle, 290 F.3d at 538. This

“safety-valve” exception is narrow and applies only in rare circumstances, such as when

“an intervening change in statutory interpretation runs the risk that an individual was

convicted of conduct that is not a crime, and that change in the law applies retroactively

in cases on collateral review.” See Bruce v. Warden Lewisburg USP, 868 F.3d 170, 179

(3d Cir. 2017).

We agree with the District Court that Rafiq may not resort to § 2241 as a remedy.

Namely, Rafiq has had prior opportunities to raise the claims described in his § 2241

petition since his conviction, and, indeed, he raised several of them in his initial § 2255

motion. And although Rafiq argues that he is entitled to review under § 2241 because he

has evidence demonstrating his actual innocence, his claim is not the sort of innocence

claim that may be entertained in a § 2241 motion. See Cordaro v. United States, 933

F.3d 232, 240-41 (3d Cir. 2019) (holding that a colorable claim of actual innocence

whereby a petitioner is “being detained for conduct that was subsequently rendered

noncriminal” by a Supreme Court decision may meet the § 2255(e) requirement when the

petitioner had no earlier opportunity to raise the claim). Additionally, we note that Rafiq

raised the same claim—unsuccessfully—in his request to file a second or successive

§ 2255 motion before the Fifth Circuit. That Rafiq’s prior challenges have been

4 unsuccessful does not make § 2255 an inadequate remedy. See, e.g., Okereke, 307 F.3d

at 120; Litterio v. Parker, 369 F.2d 395, 396 (3d Cir. 1966) (per curiam) (“[L]ack of

success does not render the remedy [under § 2255] inadequate or ineffective.”). The

District Court therefore properly concluded that it lacked jurisdiction over Rafiq’s § 2241

petition.

Accordingly, we will affirm the judgment of the District Court.2

2 Rafiq’s motion to expedite is denied, as he has not set forth an “exceptional reason that warrants expedition.” 3d Cir. L.A.R. 4.1.