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


9-7-2005

Surace v. Nash
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3156




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Recommended Citation
"Surace v. Nash" (2005). 2005 Decisions. Paper 565.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/565


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BPS-347                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       NO. 05-3156
                                      ____________

                                 PASQUALE SURACE
                                              Appellant

                                            v.

                             WARDEN JOHN NASH;
                       FBOP; UNITED STATES OF AMERICA
                      _____________________________________

                     On Appeal From the United States District Court
                               For the District of New Jersey
                               (D.C. Civ. No. 05-cv-02655)
                     District Judge: Honorable Jermone B. Simandle
                     _______________________________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                 August 25, 2005

     Before: RENDELL, FISHER AND VAN ANTWERPEN, CIRCUIT JUDGES

                                (Filed September 7, 2005)
                                       __________

                                        OPINION
                                       __________

PER CURIAM

       Pasquale Surace, a federal prisoner, appeals pro se the May 31, 2005, order of the

United States District Court for the District of New Jersey dismissing his habeas petition

filed pursuant to 28 U.S.C § 2241. For the reasons that follow, we will summarily affirm
the judgment of the District Court.

       According to his § 2241 petition, Surace pled guilty to possession with intent to

distribute in excess of 10 grams of LSD in violation of 21 U.S.C. § 841(a)(1) and failure

to appear for sentencing in violation of 18 U.S.C. § 3146(a)(1) in the United States

District Court for the Eastern District of Virginia. On October 17, 1997, Surace was

sentenced to 132 months’ imprisonment. Surace did not file an appeal from the judgment

of conviction and sentence.

       In 1999, Surace filed a motion pursuant to 28 U.S.C. § 2255 in the District Court

for the Eastern District of Virginia alleging that his guilty plea was involuntary and that

he received ineffective assistance of counsel. Surace’s § 2255 motion was denied. In

2005, Surace filed an application with the Court of Appeals for the Fourth Circuit for

permission to file a second or successive § 2255 motion, again arguing that his guilty plea

was involuntary and that he received ineffective assistance of counsel. The application

was denied on March 14, 2005.

       Surace, who is incarcerated at FCI-Fort Dix in Fort Dix, New Jersey, then filed the

underlying § 2241 petition in the District Court for the District of New Jersey. In his

§ 2241 petition, Surace alleged that his guilty plea was involuntary and unknowing due to

ineffective assistance of counsel. Specifically, Surace alleged that counsel unlawfully

induced him to plead guilty with affirmative misrepresentations of promised plea

inducements that were never obtainable for an alien client, and failed to inform him of the



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possibility of deportation as a consequence of his conviction. On May 31, 2005, the

District Court dismissed Surace’s § 2241 petition, concluding that Surace had not shown

that § 2255 is inadequate or ineffective such that he should be allowed to proceed under

§ 2241. This timely appeal followed.

       A § 2255 motion is the presumptive means by which a federal prisoner can

challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343

(1974). A federal prisoner may proceed under § 2241 only if the remedy provided by

§ 2255 is inadequate or ineffective to test the legality of his detention. See 28 U.S.C.

§ 2255; In re Dorsainvil, 119 F.3d 245, 249-51 (3d Cir. 1997). “A § 2255 motion 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 claims.” Cradle v. United States ex rel. Miner, 290 F.3d 536, 538

(3d Cir. 2002). Section 2255 is not inadequate or ineffective merely because a prior

motion has been unsuccessful or the petitioner is unable to meet the stringent gatekeeping

requirements for filing a second or successive § 2255 motion. See Okereke v. United

States, 307 F.3d 117, 120-21 (3d Cir. 2002); see also Cradle, 290 F.3d at 539. Rather,

§ 2255 is inadequate or ineffective, for example, in the “rare situation” where an

intervening change in law makes the crime for which the petitioner was convicted “non-

criminal.” Okereke, 307 F.3d at 120.

       Surace’s situation is not the rare one rendering § 2255 inadequate or ineffective.



                                              3
Surace’s challenge to his conviction implicates no intervening change in law such that the

crimes to which he pled guilty are “non-criminal.” There is no doubt that Surace’s claims

fall within the purview of § 2255, and, as the District Court concluded, Surace has not

demonstrated that § 2255 is inadequate or ineffective. That Surace may not have realized

until 2004 that he would be deported to Italy as a result of his conviction, or that his status

as an alien prevented him from obtaining all the possible benefits counsel had advised

him of does not alter this result. In short, Surace’s attempt to circumvent the gatekeeping

provisions of § 2255 is unavailing, and amounts to little more than an end run around the

Fourth Circuit Court of Appeals’ decision denying his application for authorization to file

a second or successive § 2255 motion.

       Because this appeal presents no substantial question, we will summarily affirm the

District Court’s May 31, 2005 order.




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