2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-10-2012

Donald Nichols v. USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-3280

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1

DLD-059 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-3280

___________

DONALD NICHOLS,

Appellant

v.

UNITED STATES OF AMERICA; GREG BARTKOWSKI, 

ADMINISTRATOR, NEW JERSEY STATE PRISON

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 3-10-cv-03681)

District Judge: Honorable Peter G. Sheridan

____________________________________

Submitted for Possible Summary Action Pursuant to Third Circuit

LAR 27.4 and I.O.P. 10.6

December 8, 2011

Before: AMBRO, JORDAN and VANASKIE, Circuit Judges

(Opinion filed: April 10, 2012)

_________

OPINION

_________

PER CURIAM

Donald Nichols, a prisoner serving a period of incarceration pursuant to a federal 

criminal sentence, appeals the District Court‟s dismissal of his 28 U.S.C. § 2241 habeas 
2

corpus petition. We will affirm.

Nichols argued in his counseled petition that the United States Government had 

committed a “clear breach” of his plea agreement by housing him at a federal facility 

instead of the allegedly agreed-upon state facility, thereby violating his due-process 

rights. Insisting that specific performance of the plea agreement would not be 

“appropriate in the instant matter because the [plea agreement] is and was always 

illusory,” Nichols requested that he be permitted to rescind his original guilty plea. 

Nichols also maintained that the prior courts to have ruled on his petitions and motions 

relating to the plea agreement had violated his due-process rights by “misconstruing” his 

filings and by declining to grant him the relief he sought.1 

The Government moved to dismiss the petition for lack of jurisdiction. In its 

opinion and order of August 4, 2011, the District Court granted the Government‟s motion 

and dismissed the petition.

We have appellate jurisdiction under 28 U.S.C. § 1291. We generally exercise 

plenary review over the denial of a § 2241 petition and over dismissals for lack of 

subject-matter jurisdiction. Symczyk v. Genesis Healthcare Corp., 656 F.3d 189, 191 n.4

(3d Cir. 2011); United States v. Friedland, 83 F.3d 1531, 1542 (3d Cir. 1996).

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

federal prisoners can challenge their convictions or sentences that are allegedly in 
3

violation of the Constitution.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 

2002); see also 28 U.S.C. § 2255(a) (a prisoner must move for § 2255 relief in “the court

which imposed the sentence”). Claims relating to breaches of plea agreements that would 

require invalidation of the underlying conviction or sentence must generally be raised in a

§ 2255 motion. See, e.g., Hodge v. United States, 554 F.3d 372, 374 (3d Cir. 2009); 

United States v. Williams, 158 F.3d 736, 737–40 (3d Cir. 1998) (describing vacation of 

conviction and sentence due to alleged Government breach of plea agreement as 

“quintessential relief in a § 2255 proceeding”). By contrast, a petition under 28 U.S.C. 

§ 2241 “allows a federal prisoner to challenge the „execution‟ of his sentence in habeas,”

and must be filed “in the district where the prisoner is confined.” Woodall v. Fed. 

Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005); Bradshaw v. Story, 86 F.3d 164, 

166 (10th Cir. 1996). An argument that the sentence, as carried out, is “unlawful by 

reason of the Government‟s breach” and must be corrected by specific performance, is 

properly raised in a § 2241 petition. Peak v. Petrovsky, 734 F.2d 402, 405 n.6 (8th Cir. 

1984); see also Nichols v. Symmes, 553 F.3d 647, 649 (8th Cir. 2009);

2 Woodall, 432 

F.3d at 243–44 (proceeding via § 2241 was proper when a prisoner objected to, inter alia, 

place of confinement).

When § 2255 provides the appropriate remedy, a prisoner must avail himself of 

 

1

The convoluted history of Nichols‟s past filings was recounted in the District Court‟s 

opinion. See generally Nichols v. United States, No. 10-3681, 2011 WL 3425557 (D.N.J. 

Aug. 4, 2011). 

2 Nichols is the Eighth Circuit‟s opinion in another of Nichols‟s attacks on his sentence. 
4

that section; and, in those instances, courts usually cannot exercise § 2241 jurisdiction. 

See Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010); Cephas v. Nash, 328 F.3d 98, 103 

(2d Cir. 2003). There is a statutory exception, however, if a § 2255 motion is 

“inadequate or ineffective to test the legality of [the prisoner‟s] detention.” 28 U.S.C. 

§ 2255(e); Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002) (per curiam). A 

§ 2255 motion is not inadequate or ineffective merely because the sentencing court has 

denied relief, Cradle, 290 F.3d at 539, or because the petitioner cannot meet “the 

stringent gatekeeping requirements” of § 2255, In re Dorsainvil, 119 F.3d 245, 251 (3d 

Cir. 1997). Rather, “[a] § 2255 motion would be inadequate or ineffective only if the 

petitioner can show that a limitation of scope or procedure would prevent a § 2255 

proceeding from affording him a full hearing and adjudication of his

wrongful[-]detention claim.” Okereke, 307 F.3d at 120.

The Government was correct that the District Court lacked subject-matter 

jurisdiction to adjudicate the § 2241 petition.3 Nichols plainly requested that the 

 

3

The District Court‟s opinion can be read as dismissing Nichols‟s petition pursuant to the 

doctrine of collateral estoppel, also known as issue preclusion. However, “preclusion is 

not jurisdictional.” Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 

159, 170 (3d Cir. 2010) (citations omitted); see also Edwards v. City of Jonesboro, 645 

F.3d 1014, 1017 (8th Cir. 2011). We must determine the presence of subject-matter 

jurisdiction before addressing non-jurisdictional issues of merit. See Steel Co. v. Citizens 

for a Better Env‟t, 523 U.S. 83, 94–95 (1998); Knapper v. Bankers Trust Co. (In re 

Knapper), 407 F.3d 573, 580 n.15 (3d Cir. 2005). Nichols‟s selection of statute 

implicated jurisdictional concerns; finding jurisdiction to have been lacking below, we 

need not reach the question of collateral estoppel. See Erie Telecomms. v. City of Erie, 

853 F.2d 1084, 1089 n.10 (3d Cir. 1988) (“An appellate court may affirm a correct 
5

Government‟s alleged breach of the plea agreement lead to rescission of his plea and 

modification of his conviction.4 Such relief is within the heartland of § 2255. That he 

may now be barred from filing a § 2255 motion without first obtaining permission from a 

Court of Appeals, see 28 U.S.C. § 2244(b), or otherwise by the intervening passage of 

time, see 28 U.S.C. § 2255(f), is ultimately irrelevant; “[i]t is the inefficacy of [§ 2255], 

not the personal inability to use it, that is determinative.” Cradle, 290 F.3d at 538

(emphasis added). As we observed above, § 2255 is often invoked in challenges to plea 

agreements. As Nichols failed to show that his petition fit within the narrow “safety 

valve” subsection of § 2255, he was required to proceed by motion under § 2255. The 

District Court therefore lacked jurisdiction over Nichols‟s § 2241 petition.

To the extent that Nichols argues that the other courts that addressed his claims 

violated his due-process rights, we plainly lack jurisdiction to review the actions of courts 

outside this Circuit. Nichols‟s dissatisfaction with those outcomes should have been 

addressed by seeking appellate review or by petitioning for certiorari from the United 

 

decision by a lower court on grounds different than those used by the lower court in 

reaching its decision.”).

4 Nichols proceeds pro se on appeal before this Court, but was counseled below. In his 

summary-action responses, he insists that the fate of his petition “should not be linked to 

the type of remedy requested by a petitioner,” implying that he was unaware of the 

importance attached to the relief he sought in District Court. To the extent that he now 

demonstrates his amenability to an outcome other than rescission of his plea agreement, 

he cannot raise the matter for the first time on appeal. See Chambers v. Sch. Dist. of 

Phila. Bd. of Educ., 587 F.3d 176, 187 (3d Cir. 2009); see also Link v. Wabash R.R. Co., 

370 U.S. 626, 634 (1962) (parties are bound by the acts of their attorneys). His District 
6

States Supreme Court.

In sum, “[b]ecause this appeal does not present a substantial question, we will 

summarily affirm the District Court‟s judgment.” Murray v. Bledsoe, 650 F.3d 246, 248 

(3d Cir. 2011) (per curiam); see also 3d Cir. L.A.R. 27.4; I.O.P. 10.6. 

 

Court filings were not entitled to the liberal construction afforded to pro se litigants. Cf.

Hartmann v. Carroll, 492 F.3d 478, 482 n.8 (3d Cir. 2007).