GLD-200 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 13-1296

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JAMES T. KIMBALL,

Appellant

v.

DELBERT SAUERS, WARDEN

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 3:12-cv-01776)

District Judge: Honorable Edwin M. Kosik

____________________________________

Submitted for Possible Summary Action Pursuant to 

Third Circuit LAR 27.4 and I.O.P. 10.6 and for Possible Issuance 

of a Certificate of Appealability Pursuant to 28 U.S.C. § 2253(c)(1)

April 18, 2013

Before: FUENTES, FISHER and GREENBERG, Circuit Judges

(Opinion filed: April 24, 2013 )

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OPINION

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PER CURIAM

James T. Kimball appeals pro se from the District Court’s order dismissing his 

petition for a writ of habeas corpus. Because the appeal presents no substantial question, 

we will summarily affirm the District Court’s order.

I.

In 2000, the United States District Court for the Middle District of Florida 

convicted Kimball of conspiracy to distribute a prescription drug without a prescription 

with the intent to defraud or mislead, and related offenses. The court sentenced Kimball 

to 13 years’ imprisonment and Kimball unsuccessfully pursued a direct appeal. The 

District Court denied his subsequent 28 U.S.C. § 2255 motion.

In September 2012, while incarcerated at the Federal Corrections Complex at 

Allenwood, Kimball filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. 

§ 2241. He alleged that, during his sentencing hearing, the trial judge accepted new 

charges without requiring an indictment, found Kimball guilty of the new charges, and 

then added 150 months onto Kimball’s sentence. Although he also alleged that the trial 

judge refused to appoint counsel, Kimball stated that this particular issue was not the 

basis of his habeas petition. The Magistrate Judge determined that Kimball failed to 

demonstrate that a motion under section 2255 would be an inadequate or ineffective 

remedy. Overruling Kimball’s objections to the Magistrate Judge’s report and 

recommendations, the District Court dismissed the petition for lack of jurisdiction. 

Kimball filed a timely notice of appeal.
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II.

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a).1 We exercise 

plenary review over the District Court’s legal conclusions. Vega v. United States, 493 

F.3d 310, 314 (3d Cir. 2007). We may summarily affirm a judgment of the District Court 

on any basis supported by the record if the appeal does not raise a substantial question. 

See I.O.P. 10.6; see also Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011).

III.

The District Court properly dismissed Kimball’s section 2241 petition for lack of 

jurisdiction. A motion filed under section 2255 in the sentencing court is the presumptive 

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

Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). By contrast, section 2241 

“confers habeas jurisdiction to hear the petition of a federal prisoner who is challenging 

not the validity but the execution of his sentence.” Coady v. Vaughn, 251 F.3d 480, 485-

86 (3d Cir. 2001) (noting that challenges to the execution of a sentence include, e.g., 

challenges to wrongful revocation of parole, place of imprisonment, and credit for time 

served) (internal citations omitted). Here, Kimball claimed the trial court illegally 

increased his sentence upon making a factual determination during his sentencing 

hearing.2 We therefore agree with the District Court that Kimball’s claim is actually an 

 

1 A certificate of appealability is not required to appeal the denial of a section

2241 petition. Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir. 2009).

2

See S. Union Co. v. United States, 132 S. Ct. 2344 (2012).
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attack on the validity of his sentence and, as such, must be brought pursuant to section 

2255.

However, a petitioner can seek relief under section 2241 if the remedy provided by 

section 2255 is inadequate or ineffective to test the legality of his detention. 28 U.S.C. 

§ 2255(e); In re Dorsainvil, 119 F.3d 245, 249-51 (3d Cir. 1997). “Section 2255 is not 

inadequate or ineffective merely because the sentencing court does not grant relief, the 

one-year statute of limitations has expired, or the petitioner is unable to meet the stringent 

gatekeeping requirements of the amended § 2255.” Cradle v. United States ex rel. Miner, 

290 F.3d 536, 539 (3d Cir. 2002) (per curiam). Rather, the “safety valve” provided under 

section 2255 is extremely narrow and applies only in unusual situations, such as those in 

which a prisoner has had no prior opportunity to challenge his conviction for actions later 

deemed to be non-criminal by an intervening change in law. See Okereke, 307 F.3d at 

120 (citing In re Dorsainvil, 119 F.3d at 251).

Section 2255 is not inadequate or ineffective to test the legality of Kimball’s 

detention. Kimball seeks to invoke the “safety valve” by way of the Supreme Court’s 

recent decision in S. Union Co. v. United States, 132 S. Ct. 2344 (2012), which applied 

the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), to the imposition of 

criminal fines. Importantly, though, Kimball has not argued that Southern Union deemed

his actions to be non-criminal. Rather, Kimball asked the District Court to hold that 

Southern Union invalidates his sentence. This is an argument that falls within the normal 
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ambit of section 2255, and outside of the unusual situation recognized by cases like 

Dorsainvil.

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Kimball also expressed concern that section 2255 is inadequate for two additional 

reasons. First, he stated that the trial court, which is the court that would hear any 

successive section 2255 motion, will not admit to falsely imprisoning him. However, the 

perceived bias of the trial court is not a basis for a section 2241 petition. See Tripati v. 

Henman, 843 F.2d 1160, 1163 (9th Cir. 1988) (stating that alleged judicial bias does not 

render section 2255 inadequate or ineffective because a petitioner may raise the issue of 

bias on appeal or in a motion for recusal). Second, Kimball acknowledged that his claim 

would not likely succeed under the strict gatekeeping requirements that apply to 

successive section 2255 motions. He may be correct, but it is well-settled that the mere 

fact a petitioner faces the strict gatekeeping requirements applicable to successive section 

2255 motions does not make section 2255 an inadequate or ineffective remedy. See

Cradle, 290 F.3d at 539. For these reasons, Kimball has not shown that section 2255 is 

“inadequate or ineffective” to test the legality of his detention. See In re Dorsainvil, 119 

F.3d at 251.

Accordingly, the District Court did not err in dismissing Kimball’s section 2241 

petition for lack of jurisdiction. For substantially the same reasons set forth by the 

 

3 We note that, in any case, Kimball could have raised an Apprendi claim in his 

initial section 2255 motion.
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District Court, we will summarily affirm the District Court’s order dismissing Kimball’s

section 2241 petition. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.