                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-10-2007

Sepulveda v. Smith
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3147




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Recommended Citation
"Sepulveda v. Smith" (2007). 2007 Decisions. Paper 1785.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1785


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                                                                             CLD-67
                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       No. 06-3147
                                     ______________

                                GEORGE SEPULVEDA,
                                        Appellant

                                             v.

                                    JOSEPH SMITH
                              _________________________

                     On Appeal From the United States District Court
                         For the Middle District of Pennsylvania
                                (D.C. Civil No. 06-00734)
                       District Judge: Honorable Sylvia H. Rambo
                            ___________________________

         Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or
            Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                 November 30, 2006

               Before: RENDELL, SMITH and COWEN, Circuit Judges.

                                 (Filed January 10, 2007)
                                     ______________

                               OPINION OF THE COURT
                                  ________________

PER CURIAM

       In 1997, in the United States District Court for the District of Rhode Island,

George Sepulveda was convicted of various RICO-related offenses, including

racketeering, in violation of 18 U.S.C. § 1962(c), and a violent crime (murder) in aid of
racketeering activity, in violation of 18 U.S.C. § 1959. Sepulveda was sentenced to life

imprisonment. After his conviction and sentence were affirmed in 1999, Sepulveda

moved for relief under 28 U.S.C. § 2255. This motion was denied, as were a subsequent

§ 2241 petition for writ of habeas corpus and a coram nobis petition. More recently, the

United States Court of Appeals for the First Circuit denied Sepulveda’s application for

authorization to file a second or successive § 2255 motion.

       Sepulveda, who is currently incarcerated at the United States Penitentiary in

Lewisburg, Pennsylvania, has filed another petition for writ of habeas corpus pursuant to

§ 2241 with the United States District Court for the Middle District of Pennsylvania. The

District Court dismissed that petition, and Sepulveda appealed.

       In his § 2241 petition, Sepulveda argues that § 2255 would be an inadequate or

ineffective remedy because his claim is not based on newly discovered evidence or a new

rule of constitutional law. Instead, he alleges that he was unable to raise a claim that his

jury was not selected from a representative cross section of the community (and that the

district court erred by not conducting a hearing on this issue) in his prior § 2255 motion

because the census statistics necessary to support such a claim were not available until

after his initial § 2255 motion was due. He further contends that his trial counsel was

ineffective because he failed to request fees for expert investigation work and census

statistics under 18 U.S.C. § 3006A.

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



                                              2
can challenge their convictions or sentences that are allegedly in violation of the

Constitution.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002) (citation

omitted). Unless a § 2255 motion would be “inadequate or ineffective,” a habeas corpus

petition under § 2241 cannot be entertained by the court. Cradle v. United States ex rel.

Miner, 290 F.3d 536, 538 (3d Cir. 2002) (per curiam). Section 2255 is not inadequate or

ineffective merely because a petitioner is unable to meet its stringent gatekeeping

requirements. See In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). Rather, the

“safety-valve” provided under § 2255 is extremely narrow, and has been held to apply in

unusual situations, such as those in which a prisoner has had no prior opportunity to

challenge his conviction for actions later deemed to be non-criminal by an intervening

change in law. See Okereke, 307 F.3d at 120.

       Sepulveda’s claims fall within the purview of § 2255 because they challenge the

validity of his conviction. We agree with the District Court that Sepulveda has not

demonstrated that § 2255 is an “inadequate or ineffective” remedy under the

circumstances presented here. See Cradle, 290 F.3d at 538 (“It is the inefficacy of the

remedy, not the personal inability to use it, that is determinative”).

       For these reasons, the District Court properly dismissed Sepulveda’s § 2241

petition. We will, therefore, summarily affirm the District Court’s order.




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