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UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

DAVE GREEN, :

:

Petitioner :

:

v. : CIVIL NO. 4:CV-05-780

:

CRAIG APKER, : (Judge McClure) 

:

Respondent :

MEMORANDUM AND ORDER

 May 13, 2005 

Background

Dave Green, an inmate presently confined at the Allenwood Low Security

Correctional Institution, White Deer, Pennsylvania (LSCI-Allenwood), initiated this

pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. By

Memorandum and Order dated April 27, 2005, the petition was dismissed without

prejudice.

Green, a native and citizen of Jamaica, pled guilty to conspiracy to import a

Schedule II controlled substance in the United States District Court for the

Southern District of Florida. As a result of that conviction, he is presently serving 

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a seventy-eight (78) month term of imprisonment at LSCI-Allenwood. The Bureau

of Immigration and Customs Enforcement (BICE) has also lodged a detainer

against Green.

Petitioner challenged his federal conviction on the basis that he was not

advised of his right to seek assistance from the Jamaican consulate. He adds that

the failure of government officials to apprise him of his right under 8 C.F.R. § 242

was an abuse of discretion and violated his due process and equal protection rights

as well as Article 36 of the Vienna Convention on Consular Relations. Based on

those same arguments, Green, relying upon INS v. St. Cyr, 533 U.S. 289 (2001), 

also attacked the legality of the BICE’s detainer. As relief, Petitioner sought his

release and reversal of his criminal conviction.

In dismissing his petition, this Court concluded that Green could not employ

§ 2241 to challenge the legality of his criminal conviction from the Southern District

of Florida. It was noted that there was no basis to conclude that Petitioner’s

remedy under 28 U.S.C. § 2255 was inadequate or ineffective. Consequently,

Green was advised that any challenge to his federal conviction had to be pursued

via either a § 2255 petition or an application for leave to file a second or successive

§ 2255 action. With respect to his BICE detainer challenge, the Court noted that

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there was no indication that a final order of removal had been entered and that the

detainer was being attacked on the grounds that it resulted from an illegally obtained

conviction. Furthermore, unlike St Cyr: (1) Green’s conviction was not prior to

enactment of the Illegal Immigration Reform and Immigrant Responsibility Act and

(2) Petitioner was seeking to vacate a federal criminal sentence and thus had the

availability of a § 2255 remedy. 

Petitioner presently seeks reconsideration of the dismissal of his habeas

petition on the grounds that the Court selectively included and omitted facts from

the petition. Green also argues that this Court’s decision constitutes a suspension

of the writ of habeas corpus. He also filed a request for leave to proceed in forma

pauperis on appeal.

Discussion

A motion for reconsideration is a device of limited utility. It may be used

only to seek remediation of manifest errors of law or fact or to present newly

discovered precedent or evidence which, if discovered previously, might have

affected the court's decision. Harsco Corp. v. Zlotnicki, 779 F.2d 906 (3d Cir.

1985), cert. denied, 476 U.S. 1171 (1986). 

It has also been held that a motion for reconsideration is appropriate in

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instances such as where the court has " . . . misunderstood a party, or has made a

decision outside the adversarial issues presented to the court by parties, or has

made an error not of reasoning, but of apprehension." See Rohrbach v. 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. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va.

1983). "Because federal courts have a strong interest in the finality of judgments,

motions for reconsideration should be granted sparingly." Continental Casualty

Co. v. Diversified Indus., Inc., 884 F. Supp. 937, 943 (E.D. Pa. 1995). 

Green’s reconsideration motion does not present any facts or arguments

which would undermine this Court’s prior determination that the challenges to his

federal conviction cannot be asserted via a § 2241 petition. Second, this Court

finds that Green’s argument that this Court’s prior determination was an

unconstitutional suspension of the writ of habeas corpus lacks arguable merit. On

the contrary, this Court correctly found that § 2255 was his exclusive remedy since

he had not established that said remedy was inadequate or ineffective.

 Since Petitioner’s reconsideration motion has failed to establish the presence

of any errors of law or fact and does not set forth any newly discovered evidence

or precedent, it will be denied. However, the Petitioner’s request for leave to

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proceed in forma pauperis on appeal will be granted. Consequently,

IT IS HEREBY ORDERED THAT:

1. Petitioner’s motion for reconsideration (Record

document no. 4) is denied.

2. The Petitioner’s request to proceed in forma pauperis on

appeal (Record document no. 6) is granted.

 s/ James F. McClure, Jr. 

 JAMES F. McCLURE, JR.

United States District Judge

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