                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-4-2002

Okereke v. USA
Precedential or Non-Precedential: Precedential

Docket No. 01-1007




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Recommended Citation
"Okereke v. USA" (2002). 2002 Decisions. Paper 633.
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PRECEDENTIAL

       Filed September 12, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-1007

UCHENNA H. OKEREKE,
       Appellant

v.

UNITED STATES OF AMERICA

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 00-cv-05289)
District Judge: Hon. Joseph E. Irenas

No. 01-4075

UNITED STATES OF AMERICA

v.

UCHENNA H. OKEREKE,
       Appellant

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Crim. No. 93-cr-00108)
District Judge: Hon. Joseph E. Irenas




Submitted Under Third Circuit LAR 34.1(a)
September 12, 2002

Before: SLOVITER and RENDELL, Circuit Judges,
and McCLURE,* District Judge

(Filed: September 12, 2002)

       Patricia A. Nichols
       Bloomfield, N.J. 07003
        Attorney for Appellant

       George S. Leone
        Chief, Appeals Division
       Glenn J. Moramarco
        Assistant U.S. Attorney
       Christopher J. Christie
        United States Attorney
       Office of United States Attorney
       Newark, N.J. 07102

        Attorneys for Appellee
OPINION OF THE COURT

SLOVITER, Circuit Judge.

This is a consolidated appeal in which Appellant,
Uchenna H. Okereke, alleges that the District Court erred
for numerous reasons. We do not reach the merits because
the District Court lacked jurisdiction to review Okereke’s 28
U.S.C. S 2255 motion. Furthermore, because Okereke has
not only served his prison term but has also been deported
from the United States, all remaining issues regarding
sentencing are moot.
_________________________________________________________________

* Hon. James F. McClure, Jr., United States District Court for the Middle
District of Pennsylvania, sitting by designation.

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I.

On March 3, 1993, Appellant Uchenna Okereke was
charged in a single count indictment with conspiracy"to
import into the United States . . . more than 1 kilogram of
heroin" contrary to 21 U.S.C. SS 952(a) and 960(a)(1) and in
violation of 21 U.S.C. S 963. His trial began before a jury in
the United States District Court for the District of New
Jersey, but on the third day of trial, Okereke retracted his
not guilty plea and pled guilty. At the guilty plea hearing,
Okereke admitted to two separate incidents involving heroin
importation. Okereke was sentenced to 135 months in
prison and five years of supervised release. He appealed his
final judgment of conviction and sentence to this court. We
affirmed in a memorandum opinion filed December 15,
1994.

On May 18, 1995, Okereke filed his first motion under 28
U.S.C. S 2255. The District Court granted the portion of the
motion seeking resentencing but denied the claim of
ineffective assistance of counsel on its merits. On June 3,
1996, Okereke filed his second motion under 28 U.S.C.
S 2255. Because Okereke failed to obtain certification
authorizing consideration of the motion from this court, the
District Court dismissed it as a barred second S 2255
motion.

More than three years later on October 26, 2000,
Okereke filed his third S 2255 motion. This time, Okereke
argued that his Fifth Amendment Due Process rights and
Sixth Amendment right to a jury and notice were violated
because the finding that he was responsible for between
three and ten kilograms of heroin was not made by a jury
using a beyond a reasonable doubt standard of proof but
instead made by a trial judge at sentencing using the
preponderance of evidence standard. He based this motion
on Apprendi v. New Jersey, 530 U.S. 466 (2000).

On December 5, 2000, the District Court held that it had
jurisdiction to consider Okereke’s claims by
recharacterizing Okereke’s S 2255 motion as a motion for
relief pursuant to 28 U.S.C. S 2241. The District Court then
denied Okereke relief on the merits of his claim, but issued
a certificate of appealability on the Apprendi issue. That
appeal is before us now.

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On May 24, 2001, Okereke filed a motion to modify his
term of imprisonment pursuant to 18 U.S.C. S 3582(c)(2).
The District Court denied Okereke’s motion, and Okereke
appealed. The two appeals were consolidated, and are
before us now.

For the record, Okereke is no longer in the United States.
On December 20, 2001, Okereke was released from federal
custody and turned over to the INS for deportation.
Okereke was deported on January 10, 2002.

II.

We have jurisdiction to hear this appeal pursuant to 28
U.S.C SS 1291 and 2253(a). 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, 290 F.3d 536, 538 (3d Cir. 2002) (per
curiam).

The appeal in No. 01-1007 is from the District Court’s
order recharacterizing Okereke’s motion under 28 U.S.C.
S 2255 as one pursuant to 28 U.S.C. S 2241, and by doing
so, empowering itself to review the motion on its merits.
The government maintains that the District Court did not
have jurisdiction to hear the motion in the first instance.
We agree.1

Okereke argues that his third motion under S 2255 was,
in fact, a motion made under S 2244, but does not explain
why this is important. Section 2244 refers to procedures
and applications necessary to gain certification for
successive habeas corpus petitions from courts of appeals,
and must be read in conjunction with S 2255. In re Turner,
267 F.3d 225, 227 (3d Cir. 2001). In any event, the District
Court properly construed Appellant’s third motion as a
petition under S 2255 for habeas corpus relief.
_________________________________________________________________

1. Appellant contends that the government waived its jurisdictional
argument because it failed to raise it before the District Court. Appellant
is wrong. It is well-settled that a party can never waive lack of subject
matter jurisdiction. See Pennsylvania v. Union Gas Co., 491 U.S. 1, 26
(1989) (Stevens, J., concurring).

                                4


Motions pursuant to 28 U.S.C. S 2255 are the
presumptive means by which federal prisoners can
challenge their convictions or sentences that are allegedly
in violation of the Constitution. See Davis v. United States,
417 U.S. 333, 343 (1974). In In re Dorsainvil , we interpreted
the statutory language providing that S 2255 must be used
to raise a challenge to the validity of a conviction or
sentence unless that section is "inadequate or ineffective."
119 F.3d 245, 251 (3d Cir. 1997). We found such a
situation in In re Dorsainvil, where the petitioner was in the
"unusual position" of a prisoner with no prior opportunity
to challenge his conviction for a crime that an intervening
change in substantive law could negate with retroactive
application. Id. In short, Dorsainvil may have been
convicted for conduct the Supreme Court in Bailey v.
United States, 516 U.S. 137 (1995), deemed not to be
criminal. See id.

The District Court held that Okereke’s case fit within the
narrow exception of In re Dorsainvil on the ground that
Apprendi v. New Jersey, 530 U.S. 466 (2000), was an
intervening change in law that Okereke could not have
predicted and could not have used as the basis of aS 2255
motion. However, In re Dorsainvil was a rare situation. A
S 2255 motion would be inadequate or ineffective only if the
petitioner can show that a limitation of scope or procedure
would prevent a S 2255 proceeding from affording him a full
hearing and adjudication of his wrongful detention claim.
See Cradle v. United States, 290 F.3d 536, 538 (3d Cir.
2002) (per curiam).

The District Court misconstrued the narrowness of our
holding in In re Dorsainvil where we were careful to limit
the holding by stating: "We do not suggest thatS 2255
would be ‘inadequate or ineffective’ so as to enable a second
petitioner to invoke S 2241 merely because that petitioner is
unable to meet the stringent gatekeeping requirements of
the amended S 2255." 119 F.3d at 251.

Unlike the intervening change in law in In re Dorsainvil
that potentially made the crime for which that petitioner
was convicted non-criminal, Apprendi dealt with sentencing
and did not render conspiracy to import heroin, the crime
for which Okereke was convicted, not criminal. Accordingly,

                                5


under our In re Dorsainvil decision, S 2255 was not
inadequate or ineffective for Okereke to raise his Apprendi
argument. As a successive S 2255 motion, the District
Court lacked jurisdiction to consider its merits.

III.

We thus proceed to Okereke’s appeal in No. 01-4075 in
which he argues that the District Court erred when it
denied his motion to reduce his sentence pursuant to 18
U.S.C. S 3582(c). Because Okereke has not only completed
his prison sentence but also has been deported from the
United States, the government argues that his appeal is
moot. We agree.
In order for us to exercise our jurisdiction, there must be
an Article III, S 2 case or controversy. See Spencer v.
Kemna, 523 U.S. 1, 7 (1998). Even if a case or controversy
existed during the district court proceedings, Okereke must
show that one currently exists for us to exercise our
jurisdiction. See Chong v. District Director, I.N.S., 264 F.3d
378, 383 (3d Cir. 2001). Furthermore, Okereke must
demonstrate that he has suffered or is threatened with an
actual injury traceable to the District Court’s decision that
can be redressed by a favorable decision here. See id. at
384. Because Okereke has failed to make these requisite
showings, his appeal is moot.

In his reply brief, Okereke argues that because his
conviction provided the basis for his deportation, a reversal
of his conviction would permit his reentry into the United
States. As Okereke provides us with no basis for
overturning his conviction, we are left with his various
arguments in favor of resentencing. Even if we granted him
relief on all of these arguments, his conviction would
remain, thereby precluding reentry into the country. Thus,
a favorable decision on our part -- namely, a sentence
reduction -- would not provide Okereke with the tangible
benefit of reentry into the United States. Accordingly, his
appeal is moot.

IV.

For the foregoing reasons, we will vacate the District
Court’s order in No. 01-1007, because the District Court

                                6


lacked jurisdiction, and we will dismiss the appeal in No.
01-4075.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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