CLD-141                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 11-4640
                                       ___________

                            FABIAN AGUILAR-MARTINEZ,
                                                  Appellant

                                             v.

                          DONNA ZICKEFOOSE, WARDEN
                       ____________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                              (D.C. Civil No. 11-cv-07167)
                      District Judge: Honorable Robert B. Kugler
                      ____________________________________

                     Submitted for Possible Summary Action
                Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 March 15, 2012
     Before: RENDELL, HARDIMAN AND VAN ANTWERPEN, Circuit Judges

                              (Opinion filed: April 4, 2012)
                                       _________

                                        OPINION
                                        _________

PER CURIAM

       In 2005, the United States District Court for the District of Nebraska sentenced

Fabian Aguilar-Martinez to 322 months in prison for conspiring to distribute and

possession with intent to distribute 500 grams or more of methamphetamine and use or

possession of a firearm in furtherance of a drug trafficking offense in violation of 18
U.S.C. § 924(c). The Eighth Circuit Court of Appeals affirmed the judgment, and the

United States Supreme Court denied certiorari.

       In 2007, Aguilar-Martinez filed a motion pursuant to 28 U.S.C. § 2255, which the

sentencing court denied as untimely. The Eighth Circuit denied Aguilar’s subsequent

motion for a certificate of appealability. Also, in 2009, Aguilar-Martinez filed a motion

that he described as a motion for restructuring his term of imprisonment, which the

sentencing court denied an unauthorized second or successive § 2255 motion.

       In the District Court, in 2011, Aguilar-Martinez filed a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2241. He raised four claims, which the District Court

listed verbatim on page three of its memorandum, and which we will summarize as

follows: (1) the Government failed to establish that he violated § 924(c); (2) the trial

court erred in charging the jury; (3) the trial court improperly defined reasonable doubt;

and (4) counsel rendered ineffective assistance by failing to argue on appeal that the

Government did not establish a § 924(c) violation. The District Court dismissed the

petition for lack of jurisdiction, noting that it could entertain the petition only if § 2255

were an inadequate and ineffective remedy, and concluding that § 2255 was not

inadequate or ineffective.

       Aguilar-Martinez filed a notice of appeal. However, he did not submit the filing

and docketing fees or a motion to proceed in forma pauperis (“ifp”). As a consequence,

on January 24, 2012, his case was dismissed for failure to timely prosecute. In a letter

dated January 29, 2012, and received by this Court on February 3, 2012, he moves to
                                               2
reopen his case. He asserts that he expected to receive the form for filing an ifp motion

and another related form, as he had received in the past, but they had not arrived. He also

claims that he filed an ifp motion in the District Court with his notice of appeal. 1 With

his motion to reopen, Aguilar-Martinez submits a motion to proceed ifp.

       We will grant Aguilar-Martinez’s timely filed motion to reopen. L.A.R. Misc.

107.2(a). We also grant his motion to proceed in forma pauperis. Upon consideration of

the merits of this appeal, we will summarily affirm the judgment of the District Court

because no substantial issue is presented on appeal. See L.A.R. 27.4; I.O.P. 10.6.

       The District Court was without jurisdiction to consider Aguilar-Martinez’s claims

under 28 U.S.C. § 2241. As the District Court concluded, Aguilar-Martinez cannot bring

his claims under § 2241, because a motion to challenge his conviction and sentence

pursuant to 28 U.S.C. § 2255 is not “inadequate or ineffective.” 28 U.S.C. § 2255 ¶ 5.

       Section 2255 has been considered inadequate and ineffective for a petitioner

convicted and imprisoned for conduct since deemed not to be criminal.             See In re

Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). However, § 2255 is not inadequate or

ineffective just because a movant, like Aguilar-Martinez, who has previously filed a

§ 2555 motion and has been unsuccessful in an attempt to again present claims to the

sentencing court, is unable to meet its stringent gatekeeping requirements. See id.




1
  This assertion is not supported by an entry on the District Court docket, which notes
that no filing fee or ifp application was submitted.
                                              3
       Although Aguilar-Martinez argued to the contrary in the District Court, he did not

make a claim that fits under the In re Dorsainvil exception. He did not contend that, as a

result of a Supreme Court decision issued after he filed his first § 2255 motion, the

conduct for which he was convicted is now non-criminal. In fact, the cases he relied on

to support his claims, like Bailey v. United States, 516 U.S. 137 (1995), Sullivan v.

Louisiana, 508 U.S. 275 (1993), and Cage v. Louisiana, 498 U.S. 39 (1990), predate his

§ 2255 motion and his conviction.

       In short, Aguilar-Martinez presented claims for which § 2255 is not an inadequate

or ineffective remedy.     The District Court properly dismissed his § 2241 petition.

Accordingly, having granted Aguilar-Martinez’s motion to reopen this proceeding, we

will affirm the District Court’s decision.




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