ALD-151 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-1079
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JESUS ALBARRAN,
Appellant
v.
UNITED STATES OF AMERICA; DONNA ZICKEFOOSE,
WARDEN AT FCI FORT DIX PRISON
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 1-10-cv-02640)
District Judge: Honorable Robert B. Kugler
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Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6(a)
March 31, 2011
Before: SCIRICA, HARDIMAN AND VANASKIE, Circuit Judges
(Opinion filed: April 8, 2011)
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OPINION
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PER CURIAM
Jesus Albarran, a pro se prisoner, appeals from an order of the United States
District Court for the District of New Jersey dismissing his petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241. For the reasons set forth below, we will summarily
affirm. See I.O.P. 10.6.
I.
In 2006, Albarran was convicted in the United States District Court for the
Western District of Texas of conspiracy with intent to distribute more than five kilograms
of cocaine in violation of 21 U.S.C. §§ 841 and 846, and conspiracy to commit money
laundering in violation of 18 U.S.C. § 1956(h). He was sentenced to 292 months of
imprisonment. The United States Court of Appeals for the Fifth Circuit affirmed his
judgment of sentence. See United States v. Albarran, C.A. No. 06-51366 slip op. (5th
Cir. Jun. 29, 2007). The sentencing court later denied Albarran’s motion pursuant to 28
U.S.C. § 2255.
In May 2010, Albarran filed a habeas petition pursuant to 28 U.S.C. § 2241 in the
United States District Court for the District of New Jersey – the District of his
confinement. Albarran presented the following grounds for relief: (1) the government’s
failure to disclose all material evidence prior to trial violates his rights under the Fifth
Amendment; (2) the 292-month sentence violates his Eighth Amendment rights; (3) the
292-month sentence violates 18 U.S.C. § 3553(a); (4) the 292-month sentence violates the
Fifth and Sixth Amendments because the quantity of cocaine was not an element of the
indictment and not proven beyond a reasonable doubt; and (5) the excessive sentence
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deprived him of liberty without due process of law. The District Court dismissed the
petition for lack of jurisdiction. Albarran appeals.
II.
We have jurisdiction over this appeal 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 factual findings. See Cradle v. United States ex rel. Miner, 290 F.3d 536,
538 (3d Cir. 2002). Upon review, we agree with the District Court that Albarran may
raise his claims only in a motion pursuant to 28 U.S.C. § 2255.
A § 2255 motion filed in the sentencing court is the presumptive means for a
federal prisoner to challenge the validity of a conviction or sentence. See Davis v. United
States, 417 U.S. 333, 343 (1974); In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997). A
habeas petitioner may seek relief under § 2241 only if the remedy provided by § 2255 is
“inadequate or ineffective” to test the legality of his detention. See Dorsainvil, 119 F.3d
at 249-51. A § 2255 motion is not “inadequate or ineffective” merely because the
petitioner cannot meet the stringent gatekeeping requirements of § 2255, Okereke v.
United States, 307 F.3d 117, 120 (3d Cir. 2002), or because the sentencing court does not
grant relief, Cradle v. United States ex rel. Miner, 290 F.3d at 539. Rather, the “safety
valve” provided under § 2255 is extremely narrow and has been held to apply in unusual
situations, such as those in which a prisoner has had no prior opportunity to challenge his
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conviction for a crime 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).
We agree with the District Court that Albarran has not demonstrated that a § 2255
motion provides inadequate or ineffective means to raise his claims. Id. To the extent
that he wishes to file a second or successive § 2255 motion with the sentencing court, he
must request authorization from the United States Court of Appeals for the Fifth Circuit
before doing so. See 28 U.S.C. § 2244(b)(3)(A).
As Albarran’s appeal presents no substantial question, we will summarily affirm
the order of the District Court. See Third Cir. LAR 27.4; I.O.P. 10.6.
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