UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

:

USAMA SADIK ABDEL WHAB, :

:

Petitioner : No. 4:CV-05-0403

:

vs. : (Petition Filed 02/24/05)

:

: (Judge Muir)

U.S. DEPARTMENT OF JUSTICE, :

:

Respondent :

ORDER

July 28, 2005

Background

On February 24, 2005, petitioner, Usama Sadik Abdel

Whab(“Whab”), an inmate currently confined in the Pike County

Jail, Lords Valley, Pennsylvania, filed the instant petition

for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc.

No. 1). He challenges his federal conviction, raising thirtysix grounds for relief. By Order dated March 9, 2005, this

Court dismissed the petition for writ of habeas corpus without

prejudice to Whab’s right, if any, to pursue a successive §

2255 motion in the sentencing court. (Doc. No. 2). On March

21, 2005, petitioner filed a motion for reconsideration of

this Court’s March 9, 2005 Order. (Doc. No. 3). On July 1,

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2005, petitioner filed an amended motion for relief from

judgment. (Doc. No. 4). For the reasons set forth below, the

motions will be denied. 

Discussion

A motion for reconsideration is a device of limited

utility. It may be used only to seek remediation for manifest

errors of law or fact or to present newly discovered evidence

which, if discovered previously, might have affected the

court's decision. Harsco Corp. vs. Zlotnicki, 779 F.2d 906

(3d Cir. 1985), cert. denied, 476 U.S. 1171 (1986);

Massachusetts Mutual Life Insurance Co. vs. Maitland, Civil

No. 87-0827 (M.D. Pa. March 1, 1989) (Rambo, J.).

Accordingly, a party seeking reconsideration must demonstrate

at least one of the following grounds prior to the court

altering, or amending, a standing judgment: (1) an intervening

change in the controlling law; (2) the availability of new

evidence that was not available when the court granted the

motion; or (3) the need to correct a clear error of law or

fact or to prevent manifest injustice. Max's Seafood Café vs.

Quineros, 176 F.3d 669, 677 (3d Cir. 1999)(citing North River

Ins. Co. vs. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d

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Cir. 1995)). A motion for reconsideration is appropriate in

instances where the court has “...misunderstood a party, or

has made a decision outside the adversarial issues presented

to the Court by the parties, or has made an error not of

reasoning, but of apprehension.” See Rohrbach vs. AT & T

Nassau Metals Corp., 902 F. Supp. 523, 527 (M.D. Pa. 1995),

vacated in part on other grounds on reconsideration, 915 F.

Supp. 712 (M.D. Pa. 1996), quoting Above the Belt, Inc. vs.

Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983).

It may not be used as a means to reargue unsuccessful

theories, or argue new facts or issues that were not presented

to the court in the context of the matter previously decided.

Drysdale vs. Woerth, 153 F. Supp. 2d 678, 682 (E.D. Pa. 2001).

“Because federal courts have a strong interest in the finality

of judgments, motions for reconsideration should be granted

sparingly.” Continental Casualty Co. vs. Diversified Indus.

Inc., 884 F.Supp. 937, 943 (E.D. Pa. 1995). 

Upon initial review of the petition, wherein petitioner

challenges his conviction and sentence as illegal, the

following was concluded:

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To seek federal post-conviction relief from a

judgment of conviction, persons convicted in

federal court are required to bring their

collateral attacks challenging the validity of

their conviction and sentence by filing a motion

to vacate sentence pursuant to 28 U.S.C. §2255,

not under 28 U.S.C. § 2241. If a prisoner

attempts to challenge his conviction or sentence

under 28 U.S.C. §2241, the habeas petition must

be dismissed for lack of jurisdiction...It is the

petitioner's burden to prove that §2255 would be

an inadequate or ineffective remedy...Whab has

not met this burden. Moreover, Whab does not

state that he has requested permission from the

United States District Court of Appeals for the

Second Circuit for leave to file a successive

petition. There remains that possibility that

Whab would be granted permission by the Second

Circuit to file a successive § 2255 motion, if

appropriate. 

(Doc. No. 2, p. 5)(citations omitted). 

In support of his amended motion for reconsideration,

petitioner argues that since this Court's March 9, 2005 Order,

dismissing his case, he has sought and been denied permission

by the Second Circuit Court of Appeals to file a second § 2255

motion challenging his conviction and sentence. (Doc. No. 4).

Thus, he argues that he is entitled to proceed in this court

via his § 2241 petition. Section 2255, however, is not

inadequate or ineffective merely because Whab is unable to

meet the gatekeeping requirements of the Antiterrorism and

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2. In Dorsainvil, the court held that a federal

prisoner barred from using a § 2255 motion under the AEDPA

standards for successive motions could resort to a § 2241

petition if the prisoner "had no earlier opportunity to

challenge his conviction for a crime that an intervening

change in substantive law may negate . . . ." 119 F.3d at

251. The court stressed that the holding was a "narrow

one" based on the unusual circumstances presented there.

Id. at 251-52.

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Effective Death Penalty Act of 1996 for filing a second §

 2255 motion. See Re Dorsainvil, 119 F.3d 245, 251 (3d Cir.

1997). Because Whab has not established that § 2255 is

inadequate to provide relief for his claims, the court finds

that dismissal of the petition for lack of jurisdiction is

appropriate. See Application of Galante, 437 F.2d 1164, 1165

(3d Cir. 1971). 

Moreover, none of the issues raised in Whab's petition

meet the narrow Dorsainvil exception entitling him to § 2241

relief, as he has not demonstrated an intervening change in

the law which would affect the probability of his innocence.1

Thus, Whab does not raise or set forth any arguments in his

motion for reconsideration that call into question our Order

of March 9, 2005. That Order is not troubled by manifest

errors of law or fact and Whab has not presented anything new,

which if previously presented, might have affected our

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decision. Consequently, Whab's motions for reconsideration

will be denied. 

NOW, THEREFORE, IT IS HEREBY ORDERED THAT

Petitioner's motions for reconsideration (Doc. Nos. 3,

4) are DENIED.

 s/Malcolm Muir 

MUIR

United States District Judge

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