2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-28-2015

Keenan Price v. Warden Fairton FCI

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"Keenan Price v. Warden Fairton FCI" (2015). 2015 Decisions. Paper 422.

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BLD-169 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-3895

___________

KEENAN PRICE,

Appellant

v.

WARDEN, FCI FAIRTON

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 1-13-cv-07216)

District Judge: Honorable Jerome B. Simandle

____________________________________

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

April 16, 2015

Before: AMBRO, JORDAN and KRAUSE, Circuit Judges

(Opinion filed: April 28, 2015)

_________

OPINION*

_________

PER CURIAM

Keenan Price, a federal prisoner currently incarcerated at FCI Fairton, appeals pro 

se from an order of the United States District Court for the District of New Jersey 

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. 

For the following reasons, we will affirm.

In 2003, Price was charged in the United States District Court for the Eastern 

District of Pennsylvania with various drug and weapons offenses. The Government 

provided notice of its intention to seek an enhanced sentence based on a prior felony drug 

offense, namely, Price’s 1996 Pennsylvania conviction for possession with intent to 

deliver a controlled substance. See 21 U.S.C. § 851. A jury found Price guilty on all 

counts. Based in part on the Pennsylvania drug conviction, the District Court imposed a 

sentence of 300 months in prison, plus ten years of supervised release. We affirmed. See

United States v. Price, 458 F.3d 202 (2006), cert. denied, 549 U.S. 1147 (2007). 

Following his conviction, Price filed several post-conviction motions, all of which were 

unsuccessful.1 

Most recently, in December 2013, Price filed a petition under 28 U.S.C. § 2241 in 

the United States District Court for the District of New Jersey. Price alleged that the 

 

1

In January 2008, Price filed a motion under 28 U.S.C. § 2255, which the District Court 

denied on the merits. Price did not appeal. In October 2010, Price sought permission to 

file a second or successive § 2255 motion. We denied the application. See C.A. No. 10-

3962 (order entered Oct. 29, 2010). Price returned to District Court in May 2012, filing a 

“Petition to Reopen Sentencing Proceedings or in the Alternative Reopen § 2255 

Proceedings.” The District Court dismissed the “Petition,” explaining that it lacked 

jurisdiction to reopen the sentencing proceeding, and that Price needed permission from 

this Court before filing a second or successive § 2255 motion. Price timely filed a 

motion seeking reconsideration, which the District Court denied. Price appealed, and we 

denied his application for a certificate of appealability. C.A. No. 12-4219 (order entered 

Mar. 12, 2013). 
3

sentencing court incorrectly characterized his 1996 Pennsylvania conviction as a “felony 

drug offense.” See 21 U.S.C. § 802(44) (defining “felony drug offense” as “an offense 

that is punishable by imprisonment for more than one year under any law of the United 

States or of a State or foreign country that prohibits or restricts conduct relating to 

narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.”). 

According to Price, because his offense was not punishable by more than one year of 

imprisonment, he is “actually innocent” of the sentencing enhancement. The 

Government filed a motion to dismiss the § 2241 petition for lack of subject matter 

jurisdiction. The District Court granted that motion, holding that Price failed to 

demonstrate that 28 U.S.C. § 2255 was “inadequate or ineffective to test the legality of 

his detention.” See 28 U.S.C. § 2255(e). Price appealed.2 

 A motion filed under 28 U.S.C. § 2255 in the sentencing court is the presumptive 

means for a federal prisoner to challenge the validity of a conviction or sentence. See

Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). In certain limited 

circumstances, a federal prisoner can seek relief under § 2241 in the district of 

confinement if the remedy provided by § 2255 is inadequate or ineffective to test the 

legality of his detention. 28 U.S.C. § 2255(e); see In re Dorsainvil, 119 F.3d 245, 249-51 

 

2 We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over 

the District Court’s legal conclusions and apply a clearly erroneous standard to its 

findings of fact. See Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir. 2002). We may 

summarily affirm if the appeal does not present a substantial question. See 3d Cir. LAR 

27.4; I.O.P. 10.6.
4

(3d Cir. 1997). But we have applied this “safety valve” only in the rare situation where a 

prisoner has had no prior opportunity to challenge his conviction for actions deemed to be 

non-criminal by an intervening change in law. Okereke, 307 F.3d at 120 (citing 

Dorsainvil, 119 F.3d at 251). A § 2255 motion is not “inadequate or ineffective” merely 

because the petitioner cannot meet the stringent gatekeeping requirements of § 2255, 

Okereke, 307 F.3d at 120, or because the sentencing court does not grant relief. Cradle v. 

United States ex rel. Miner, 290 F.3d 536, 539 (3d Cir. 2002) (per curiam). 

As noted above, Price alleged that his sentence was wrongly enhanced because his 

1996 Pennsylvania conviction is not a “felony drug offense.” Notably, though, Price 

does not explain why this argument could not have been raised on direct appeal or in his 

§ 2255 motion. Price does cite Descamps v. United States, 133 S. Ct. 2276 (2013), in 

which the Supreme Court held that when deciding whether a previous conviction counts 

as a “violent felony or a serious drug offense” under the Armed Career Criminal Act, a 

sentencing court may look only to the elements of a defendant’s prior conviction, not “to 

the particular facts underlying those convictions.” Descamps, 133 S. Ct. at 2283. The 

Supreme Court reaffirmed that its existing precedent, including Taylor v. United States, 

495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005), permits 

application of the modified categorical approach only when a statute is divisible and then 

only to determine the subpart under which the defendant was convicted. See Descamps, 

133 S. Ct. at 2281-82. 
5

Price has not explained how Descamps renders § 2255 inadequate or ineffective. 

Price’s sentencing enhancement was based on his Pennsylvania conviction for possession 

with intent to deliver a controlled substance under 35 Pa. Stat. Ann. § 780-113(a)(30). 

But Descamps did not alter the approach used to evaluate convictions under § 780-

113(a)(30). Prior to the decision in Descamps, we stated that § 780-113(a)(30) “is 

disjunctive, and therefore departure from the formal categorical approach is appropriate.” 

Garcia v. Att’y Gen., 462 F.3d 287, 293 (3d Cir. 2006). Even after Descamps, we held 

that § 780-113-(a)(3) is divisible and is properly subject to the “modified” categorical 

approach. United States v. Abbott, 748 F.3d 154, 156 & n.1 (3d Cir. 2014). Therefore, 

to the extent that Price believes that Descamps mandates application of the formal 

categorical approach, he is mistaken. In sum, we conclude that Price has not 

demonstrated that § 2255 is inadequate or ineffective to test the legality of his detention. 

For the foregoing reasons, we conclude that there is no substantial question 

presented by this appeal. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6. Accordingly, we 

will summarily affirm the District Court’s judgment.