Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
8-25-2006
Rodriquez-Vera v. Johns
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2651
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"Rodriquez-Vera v. Johns" (2006). 2006 Decisions. Paper 556.
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CPS-154 UNREPORTED - NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-2651
________________
MOISES RODRIQUEZ-VERA
v.
TRACY W. JOHNS, Warden
_______________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 04-cv-00042)
District Judge: Honorable Kim R. Gibson
_______________________________________
Submitted For Possible Summary Action
Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
February 25, 2005
BEFORE: ALITO, McKEE and AMBRO, CIRCUIT JUDGES*
(Filed: August 25, 2006 )
_______________________
OPINION
_______________________
PER CURIAM
*
At the time this matter was submitted to the Court Judge, now Justice, Alito was a
member of the panel. As Justice Alito has been elevated to the Supreme Court of the
United States, the opinion is filed by a quorum of the panel. 28 U.S.C. §46(d).
Moises Rodriquez-Vera (“Rodriquez”) appeals from the District Court’s order
dismissing his petition for a writ of habeas corpus. Because Rodriquez’s appeal presents
no substantial question, we will summarily affirm.
Rodriquez is a federal prisoner incarcerated at the Federal Correctional Institution
in Loretto, Pennsylvania. On January 9, 2002, the United States District Court for the
Middle District of North Carolina sentenced Rodriquez to 87 months in prison following
his guilty plea for possession with intent to distribute cocaine and possession of a firearm
in furtherance of a drug trafficking offense. The United States Court of Appeals for the
Fourth Circuit affirmed. United States v. Rodriguez-Vera, No. 02-4738, 2003 WL
22795484 (4th Cir. Nov. 20, 2003).
In February 2004, Rodriquez filed the current habeas corpus petition under 28
U.S.C. § 2241 in the Western District of Pennsylvania. In his petition, Rodriquez
attempts to challenge his conviction and sentence under Apprendi v. New Jersey, 530
U.S. 466 (2000). He also alleges that counsel rendered ineffective assistance by advising
him to plead guilty without informing him of the consequences. The Magistrate Judge to
whom the petition was referred concluded that Rodriquez could not proceed under
§ 2241. The Magistrate Judge advised Rodriquez that his available remedy was a motion
to vacate his sentence filed in the sentencing court under 28 U.S.C. § 2255. The District
Court adopted the Magistrate Judge’s report and recommendation without further
elaboration, and dismissed the petition. Rodriquez appeals. He also moves for leave to
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file a supplemental memorandum in light of Blakely v. Washington, 124 S. Ct. 2531
(2004).
A § 2255 motion is the presumptive means by which a federal prisoner can
challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343
(1974). A federal prisoner may proceed under § 2241 only if the remedy provided by
§ 2255 is inadequate or ineffective to test the legality of his detention. See 28 U.S.C.
§ 2255; In re Dorsainvil, 119 F.3d 245, 249-51 (3d Cir. 1997). “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 claims.” Cradle v. United States ex rel. Miner, 290 F.3d 536, 538
(3d Cir. 2002). Section 2255 is not inadequate or ineffective merely because the
petitioner is unable to meet certain procedural requirements, such as the one-year period
of limitation or the stringent gatekeeping requirements for filing a second or successive
§ 2255 motion. Id. at 539.
Specifically, we considered in Okereke v. United States, 307 F.3d 117 (3d Cir.
2002), whether § 2255 is inadequate or ineffective for a federal prisoner to challenge his
sentence under Apprendi. See Okereke, 307 F.3d at 120-21. We explained that
Dorsainvil was the “rare situation” in which an intervening change in law made the crime
for which Dorsainvil had been convicted “non-criminal.” Id. at 120. Because Apprendi
dealt with sentencing and did not render a conspiracy to import heroin “not criminal,” we
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concluded that § 2255 is not inadequate or ineffective to raise an Apprendi argument. Id.
at 120-21.
While Rodriquez’s appeal has been pending, the Supreme Court has issued two
landmark decisions applying the rule of Apprendi. The first is Blakely, decided June 24,
2004, on which Rodriquez relies in his request for leave to file a supplemental
memorandum. The other is United States v. Booker, 125 S. Ct. 738 (2005), decided
January 12, 2005, which applies Blakely and reaffirms Apprendi in the context of the
Federal Sentencing Guidelines. While we have yet to explicate the meanings of Booker
and Blakely in the context of postconviction remedies, there is no substantial question
that our decision in Okereke remains intact. Because nothing in Booker or Blakely
undermines our conclusion or reasoning in Okereke, we are convinced that § 2255
remains an available remedy for pursuing such claims.
For these reasons, we conclude that Rodriquez’s appeal presents us with no
substantial question. See Third Circuit L.A.R. 27.4 and I.O.P. 10.6. Accordingly, we
will summarily affirm the District Court’s order dismissing Rodriquez’s habeas corpus
petition. His motion for leave to file a supplemental brief based on Blakely is denied.
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