                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-4-2005

Herrera v. Williamson
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1923




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Recommended Citation
"Herrera v. Williamson" (2005). 2005 Decisions. Paper 733.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/733


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CPS-293                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 05-1923
                                   ________________

                                    CURT HERRERA

                                                    Appellant
                                            v.

                           WARDEN TROY WILLIAMSON;
                           UNITED STATES OF AMERICA
                                ________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                             (D.C. Civil No. 04-cv-02803 )
                       District Judge: Honorable Malcolm Muir
                                  ________________

                       Submitted For Possible Summary Action
                      Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                     June 30, 2005

                 Before: ALITO, MCKEE and AMBRO, Circuit Judges

                                 (Filed: August 4, 2005)

                                   ________________

                                       OPINION
                                   ________________

PER CURIAM

       Curt Herrera appeals the dismissal of his habeas petition under 28 U.S.C. § 2241

by the District Court for the Middle District of Pennsylvania.
       Herrera was convicted in 1993 in the Southern District of New York of numerous

counts of racketeering, use of firearms, and use of explosives. He was sentenced to life

imprisonment followed by consecutive terms totaling 105 years. Herrera’s motion to

vacate his sentence pursuant to 28 U.S.C. § 2255 was denied in 1997, and the United

States Court of Appeals for the Second Circuit denied his two applications for permission

to file a second or successive motion to vacate.

       In 2004, Herrera, who is currently confined within the Middle District of

Pennsylvania, filed a habeas petition under 28 U.S.C. § 2241 alleging withholding of

exculpatory evidence, improper vouching by the trial court, insufficient evidence and

actual innocence of the use of firearms offenses, and ineffective counsel. The District

Court dismissed the habeas petition for lack of jurisdiction. We have appellate

jurisdiction pursuant to 28 U.S.C. § 1291.

       A § 2255 motion filed in the District Court of sentencing is the presumptive means

for a federal prisoner to challenge to his sentence. 28 U.S.C. § 2255; Okereke v. United

States, 307 F.3d 117, 120 (3d Cir. 2002). A § 2241 petition may not be entertained unless

a motion under § 2255 would be “inadequate or ineffective to test the legality of [the]

detention.” 28 U.S.C. § 2255. A § 2255 motion is not “inadequate or ineffective” merely

because the petitioner can not meet the stringent gate keeping requirements of § 2255,

Okereke, 307 F.3d at 120, or because the sentencing court does not grant relief, Cradle v.

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

       There is no doubt that Herrera’s claims fall within the purview of § 2255.

                                             2
Furthermore, as found by the District Court, Herrera has not demonstrated that § 2255 is

“inadequate or ineffective.” Accordingly, as there is no substantial question presented by

this appeal, we will summarily affirm. Third Circuit LAR 27.4; Third Circuit I.O.P. 10.6.




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