Not overruled or negatively treated on appealinfoCoverage
United States Court of Appeals, Third CircuitDec 5, 2007
256 Fed. Appx. 443 (3d Cir. 2007)

Cases citing this case

How cited

  • Brown v. Zickefoose

    …Therefore, Petitioner is not "actually innocent" within the meaning of governing law, and his reliance on the…

  • Adderly v. Zickefoose

    …Therefore, Petitioner is not "actually innocent" within the meaning of governing law, andthe narrow…

lock 2 Citing caseskeyboard_arrow_right

No. 07-3181.

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 October 18, 2007.

Opinion Filed: December 5, 2007.

On Appeal from the United States District Court for the District of New Jersey, (D.C. Civil No. 07-cv-2485), District Judge: Honorable Robert B. Kugler.

Augustine Perez, Fort Dix, NJ, pro se.

Before: MCKEE, RENDELL and SMITH, Circuit Judges.



Augustine Perez appeals the District Court's order dismissing his petition filed pursuant to 28 U.S.C. § 2241. The history of Perez's conviction and post-conviction proceedings are well known to the parties, set forth in the District Court's thorough opinion, and need not be discussed at length. Briefly, the District Court for the Western District of Virginia sentenced Perez to 326 months in prison after he was convicted of drug and firearm charges. He unsuccessfully challenged his conviction and sentence on direct appeal, in a § 2255 motion, and in a prior § 2241 petition. Perez then filed the instant § 2241 petition. The District Court dismissed the petition for lack of jurisdiction, and Perez filed a timely notice of appeal.

We have jurisdiction under 28 U.S.C. § 1291 and exercise plenary review over the District Court's legal conclusions. Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). Under the explicit terms of § 2255, a § 2241 petition cannot be entertained by a court unless a § 2255 motion would be "inadequate or ineffective." Id. In Cradle, we explained that

a § 2255 motion is inadequate or ineffective only where the petitioner demonstrates that some limitation of scope or procedure would prevent a § 2255 proceeding from affording him a full hearing and adjudication of his wrongful detention claim. It is the inefficacy of the remedy, not the personal inability to use it, that is determinative. 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.

Id. at 538-39 (citations omitted).

Perez raised his current claims of denial of choice of counsel, actual innocence of using or carrying a firearm, actual innocence based on recanted and perjured testimony, and a violation of double jeopardy in his prior § 2241 petition. We affirmed the District Court's dismissal of that petition and will not address those claims again.

Because Perez seeks to challenge his sentence and has not shown that § 2255 is inadequate or ineffective, he may not proceed under § 2241. Summary action is appropriate if there is no substantial question presented in the appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by the District Court, we will summarily affirm the District Court's order. See Third Circuit I.O.P. 10.6.