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


5-28-2008

Yahya Bicaksiz v. Charles Samuels
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1344




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HLD-106                                                            NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 08-1344
                                       ___________

                                   YAHYA BICAKSIZ,
                                             Appellant

                                             v.

                    CHARLES E. SAMUELS, Warden, FCI Fort Dix
                     ____________________________________

                     On Appeal from the United States District Court
                            for the District of New Jersey
                            D.C. Civil No. 05-cv-005915
                            (Honorable Noel L. Hillman)
                      ____________________________________

   Submitted for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  April 30, 2008
      Before: SCIRICA, Chief Judge, ALDISERT and GARTH, Circuit Judges.

                                  (Filed: May 28, 2008)
                                        _________

                               OPINION OF THE COURT
                                     _________

PER CURIAM.

       Yahya Bicaksiz appeals from an order of the United States District Court for the

District of New Jersey dismissing his habeas corpus petition for lack of jurisdiction.

Because the appeal does not present a substantial question, we will summarily affirm the

judgment of the District Court.
       Following a jury trial in the United States District Court for the Eastern District of

New York, Bicaksiz was convicted of one count of conspiracy to travel in interstate

commerce with intent to commit murder and one count of travel in interstate commerce

with intent to commit murder, both counts in violation of 18 U.S.C. § 1958. On October

2, 1998, he was sentenced to a term of 215 months’ imprisonment. The United States

Court of Appeals for the Second Circuit affirmed the conviction on direct appeal and the

United States Supreme Court denied Bicaksiz’s petition for writ of certiorari. Bicaksiz

then filed a motion under 28 U.S.C. § 2255 to vacate his sentence. The sentencing court

denied the motion, and the Second Circuit denied his request for a certificate of

appealability. On December 21, 2005, while incarcerated at the Federal Correctional

Institution at Fort Dix, New Jersey, Bicaksiz filed a petition for a writ habeas corpus

under 28 U.S.C. § 2241 in the United States District Court for the District of New Jersey.

In the § 2241 petition, he challenges his sentence on the grounds that it was calculated in

violation of Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker,

543 U.S. 220 (2005), and he also claims that he is actually innocent of the crimes for

which he was convicted. The District Court issued an order on August 10, 2007,

dismissing the § 2241 petition for lack of jurisdiction, and Bicaksiz filed a timely appeal

from that order. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291, and

review the District Court’s judgment de novo. See Okereke v. United States, 307 F.3d

117, 119 (3d Cir. 2002).



                                              2
       Motions pursuant to § 2255 “are the presumptive means by which federal

prisoners can challenge their convictions or sentences that are allegedly in violation of the

Constitution.” Id. at 120. A prisoner may bring such a challenge in a petition under §

2241 only where the remedy provided under § 2255 is inadequate or ineffective to test the

legality of the detention. See § 2255(e); Cradle v. United States ex rel. Miner, 290 F.3d

536, 538 (3d Cir. 2002). A motion under § 2255 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 wrongful

detention claim.” Id. We have explained that a prisoner may resort to § 2241 only in

extremely limited circumstances, such as when an intervening change in law has

decriminalized the conduct underlying the petitioner’s conviction. See Okereke, 307 F.3d

at 120 (citing In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997)).

       We agree with the reasons given by the District Court for dismissing the petition.

First, Bicaksiz has not shown that § 2255 is inadequate or ineffective to test the legality of

his sentence under Booker and Blakely. See Okereke, 307 F.3d at 120-21 (holding that

petitioner was not permitted not proceed under § 2241 with sentencing claim based on

Supreme Court’s intervening decision in Apprendi v. New Jersey, 530 U.S. 466 (2000)).

In addition, he has not shown that he is entitled to relief on his actual innocence claim,

since that claim is not supported by any new evidence that was unavailable at trial.




                                              3
Because the appeal does not present a substantial question, we will summarily affirm the

judgment of the District Court pursuant to Third Cir. L.A.R. 27.4 and I.O.P. 10.6.




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