                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-16-2008

David Cruz v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3216




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HLD-15 (November 2008)                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-3216
                                      ___________

                                     DAVID CRUZ,
                                            Appellant

                                            vs.

                           UNITED STATES OF AMERICA
                       ____________________________________

                    On Appeal From the United States District Court
                         For the Middle District of Pennsylvania
                             (M.D. Pa. Civ. No. 08-cv-00829)
                    District Judge: Honorable Christopher C. Conner
                      ____________________________________

                  Submitted for Possible Summary Action Pursuant to
                        Third Circuit LAR 27.4 and I.O.P. 10.6
                                 November 26, 2008
           Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges
                          Filed: December 16, 2008
                                      _________

                                        OPINION
                                        _________

PER CURIAM.

              David Cruz, a federal prisoner, appeals an order of the United States

District Court for the Middle District of Pennsylvania dismissing his habeas petition filed

pursuant to 28 U.S.C. § 2241. We will affirm.

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              In December 1997, Cruz was convicted by a federal jury in the District of

New Jersey of conspiracy to distribute, and distribution of, more than fifty grams of crack

cocaine, conspiracy to retaliate against a government witness, killing with attempt to

retaliate, and use of a firearm in a crime of violence. The court imposed three life

sentences, along with consecutive and concurrent sentences of sixty months

imprisonment. See United States v. Cruz, D. N.J. Crim. No. 96-cr-00730. We affirmed

the judgment of convictions and sentences on appeal, see C.A. No. 98-5170, and the

Supreme Court denied Cruz’s petition for a writ of certiorari. In December 1999, he filed

a motion pursuant to 28 U.S.C. § 2255 alleging that counsel rendered ineffective

assistance. In a Memorandum Opinion and Order issued on June 20, 2000, the District

Court concluded that Cruz’s claims were without merit and denied the motion. Cruz

timely appealed. This Court denied his request for a certificate of appealability in an

order issued on April 6, 2001, see C.A. No. 00-2037, and the Supreme Court

subsequently denied his petition for a writ of certiorari.

              Cruz then sought relief in the form of a petition for writ of error coram

nobis in the United States District Court for the District of New Jersey. In his coram

nobis petition, it appears that Cruz once again claimed that he received ineffective

assistance of counsel. Cruz’s motion fared no better than his § 2255 motion, and was

denied by the District Court in an order entered on January 10, 2002. Cruz appealed. We

summarily affirmed the District Court’s decision on December 13, 2002, see C.A. No. 02-



                                              2
1280, and, once again, the Supreme Court denied certiorari.

               Cruz states that he thereafter sought relief in the United States District

Court for the Central District of California where, on June 15, 2005, he filed a habeas

petition pursuant to 28 U.S.C. § 2241. According to Cruz, the District Court dismissed

that petition without prejudice. The Court of Appeals for the Ninth Circuit eventually

denied Cruz’s request for a certificate of appealability, and the Supreme Court denied his

petition for a writ of certiorari.

               Undeterred, on May 5, 2008, Cruz filed yet another habeas petition pursuant

to 28 U.S.C. § 2241, this time in the United States District Court for the Middle District

of Pennsylvania. Once again he asserted that counsel rendered ineffective assistance at

trial. Cruz further claimed that he was deprived of a full hearing and fair adjudication of

the ineffective assistance of counsel claims raised in his § 2255 motion, and that he can

now demonstrate that he is actually innocent of the crimes of which he was convicted.

Having concluded that Cruz failed to establish that he was not afforded a full and fair

adjudication of his ineffective assistance of counsel issues, or that his remedy under §

2255 was inadequate or ineffective under the standards set forth in such cases as Cradle v.

United States ex rel. Miner, 290 F.3d 536, 539 (3d Cir. 2002), and Application of

Galante, 437 F.2d 1164, 1165 (3d Cir. 1971)(per curiam), the Magistrate Judge to whom

Cruz’s petition was referred issued a Report recommending that it be dismissed for lack

of jurisdiction. Over Cruz’s objections, the District Court adopted that Report and



                                               3
Recommendation and entered an order on July 11, 2008 denying the petition. This timely

appeal followed.

              We have jurisdiction pursuant to 28 U.S.C. § 1291. For essentially the

same reasons set forth in the Magistrate Judge’s Report and Recommendation, we will

summarily affirm the order of dismissal.

              As the District Court properly concluded, a § 2255 motion is the

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

sentence, unless such a motion would be “inadequate or ineffective to test the legality of

his detention.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002); 28 U.S.C.

§ 2255 ¶ 5. A § 2255 motion is inadequate or ineffective only when “some limitation of

scope or procedure” prevents a movant from receiving an adjudication of his claim.

Cradle, 290 F.3d at 538. Section 2255 is not inadequate or ineffective merely because a

prior motion has been unsuccessful or because Cruz is unable to meet the stringent

gatekeeping requirements for filing a second or successive § 2255 motion under the

Antiterrorism and Effective Death Penalty Act of 1996. Okereke, 307 F.3d at 120-21.

See also Cradle, 290 F.3d at 539.

              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 conviction for a crime later deemed to be non-criminal

because of an intervening change in the law. See Okereke, 307 F.3d at 120 (citing In re



                                             4
Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997)). Such is not the case here. Cruz had the

opportunity to challenge his convictions and, indeed, did so. In addition to the challenges

raised on direct appeal, Cruz presented the very claims he seeks to present via the

underlying § 2241 petition in his § 2255 motion filed in the District of New Jersey. Cruz

had the further opportunity to raise any challenge he wished to make with respect to the

District Court’s disposition of his § 2255 motion – either with regard to its construction of

his claims or with respect to the law applied to his collateral motion – in the request for a

certificate of appealability he filed with this Court on appeal.

              Moreover, Cruz’s allegation that he is actually innocent of the crimes for

which he was convicted is nothing more than a disguised attempt to resurrect claims

which have been decided adversely to him. He does not argue the existence of evidence –

new or otherwise – tending to prove his innocence. Instead, Cruz merely argues that if

certain evidence were excluded from his trial, there would be insufficient evidence to

sustain the jury’s guilty verdicts. This argument, however, is simply a reworking of the

claims Cruz previously presented unsuccessfully on direct appeal and in his § 2255

motion. We agree with the District Court that the exception identified in In re Dorsainvil

is simply inapplicable in this case, and Cruz may not evade the gatekeeping requirements

of § 2255 by seeking relief under § 2241.

              Because the § 2241 petition was properly dismissed, no substantial question

is presented by this appeal. Accordingly, the District Court’s order of dismissal will be



                                              5
affirmed. See Third Circuit LAR 27.4 and I.O.P. 10.6. Cruz’s motion for the

appointment of counsel is denied. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993).




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