DLD-162                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 16-3710
                                      ____________

                                 MICHAEL SPATARO,
                                             Appellant

                                             v.

                              WARDEN FORT DIX FCI
                        __________________________________

                     On Appeal from the United States District Court
                             for the District of New Jersey
                            (D.C. Civ. No. 1-15-cv-01736)
                           District Judge: Noel L. Hillman
                       __________________________________

                    Submitted on a Motion for Summary Affirmance
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    March 16, 2017

           Before: CHAGARES, VANASKIE and KRAUSE, Circuit Judges

                              (Opinion filed: April 4, 2017)
                                     ____________

                                       OPINION*
                                      ____________


PER CURIAM

       Michael Spataro appeals from an order of the District Court dismissing his petition

for writ of habeas corpus, 28 U.S.C. § 2241, for lack of jurisdiction. For the reasons that

follow, we will summarily affirm.
       Spataro was charged in the United States District Court for the Eastern District of

New York with participating in a conspiracy to murder Joseph Campanella, an alleged

soldier in the Colombo crime family. The evidence at trial consisted of witness

testimony, telephone records, audio recordings, and photographs, showing that, on July

16, 2001, Campanella was shot by Vincent DeMartino and that Spataro had participated

in the planning of that unsuccessful attempt to murder Campanella. Following a jury

trial, Spataro was convicted of conspiracy to commit murder in aid of racketeering, in

violation of 18 U.S.C. § 1959(a)(5), assault with a dangerous weapon in aid of

racketeering, in violation of 18 U.S.C. § 1959(a)(3), and using and carrying a firearm

during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii).

The Court of Appeals for the Second Circuit affirmed the criminal judgment, but vacated

and remanded for resentencing, see United States v. Persico, 293 F. App’x 24, 27 (2d Cir.

2008). The sentencing court resentenced Spataro on October 15, 2009, to 120 months’

imprisonment on the third count, to run consecutively to the 168- and 120-month

concurrent sentences previously imposed on Counts 1 and 2, respectively, for a total

sentence of 288 months.

       Spataro filed a motion to vacate sentence, 28 U.S.C. § 2255, in the sentencing

court, arguing that his trial counsel made numerous errors that amounted to ineffective

assistance of counsel. Specifically, he asserted that counsel failed to adequately

investigate and present a viable alibi defense, failed to effectively challenge the

Government’s primary witness, and failed to retain a reliable expert witness regarding

certain telephone records. On February 19, 2013, the § 2255 motion was denied on the

merits, see Spataro v. United States, 2013 WL 618426 (E.D.N.Y. Feb. 19, 2013).

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       At issue in this appeal, on March 9, 2015, Spataro filed a pro se petition for writ of

habeas corpus, 28 U.S.C. § 2241, in the United States District Court for the District of

New Jersey, where he is currently confined. Spataro alleged that he is actually innocent

of aiding and abetting a § 924(c) offense, in light of the Supreme Court’s decision in

Rosemond v. United States, 134 S. Ct. 1240 (2014); and, in the alternative, he argued that

he may proceed under § 2241 because Rosemond is in direct conflict with the Pinkerton

instruction given at his trial, see Pinkerton v. United States, 328 U.S. 640, 646-48 (1946)

(permitting conviction of defendant for acts by a coconspirator that were “done in

furtherance of the conspiracy” and that could have been “reasonably foreseen as a

necessary or natural consequence” of the conspiracy). Specifically, Spataro argued that

he did not know that Martino possessed a gun until moments before it was used to wound

Campanella. Spataro contends that the trial court’s aiding and abetting instructions were

erroneous because they did not require the jury to find that he knew in advance that a gun

would be involved in the crime, as required by Rosemond.

       The Government moved to dismiss the § 2241 petition for lack of jurisdiction,

arguing that its burden of proof at Spataro’s trial actually was more stringent than

Rosemond’s standard because, in the Second Circuit prior to Rosemond, a defendant

could only be convicted of aiding and abetting a § 924(c) offense if he performed some

act that directly facilitated or encouraged the use or carrying of a firearm. Citing a not

precedential summary order, the Government argued that the Second Circuit has since

noted that Rosemond effectively lightened the standard for proving aiding and abetting in

that circuit, see United States v. Rivera, 571 F. App’x 55, 59 n.5 (2d Cir. 2014) (holding

of Rosemond “expanded aiding and abetting liability under Section 924(c) as previously

                                              3
recognized by this Court”). With respect to Spataro’s argument that the breadth of the

Pinkerton theory of liability is incompatible with Rosemond, the Government argued that

“the same discordance” identified by Spataro between the Pinkerton and “aiding and

abetting” standards of proof existed at the time of his conviction under the law of aiding

and abetting law in the Second Circuit, and thus he could have made that argument on

direct appeal or in his § 2255 motion.

       Counsel then entered an appearance on behalf of Spataro and submitted a response

in opposition to dismissal, arguing that the Rosemond claim had merit because the

sentencing court did not charge the jury that the Spataro must have had advance

knowledge that a firearm would be used, and that the court’s charge that a defendant must

have performed some act that directly facilitated or encouraged the perpetrator in the use

or carrying of a firearm was not tantamount to a charge that a defendant must have

advance knowledge that a firearm would be used.

       In an order entered on July 21, 2016, the District Court granted the Government’s

motion and dismissed the § 2241 petition for lack of jurisdiction. The District Court

agreed with the Government that Rosemond effectively lightened the standard for

proving aiding and abetting a § 924(c) offense in the Second Circuit. The Court also held

that Spataro had an earlier opportunity to seek judicial review of his claim that the

Pinkerton theory of liability is incompatible with the Second Circuit standard for proving

aiding and abetting a § 924(c) offense, and, that, in any event, the holdings in Rosemond

and Pinkerton address two distinct and separate theories of vicarious liability.




                                             4
       Spataro appeals. We have jurisdiction under 28 U.S.C. § 1291.1 The Government

has moved to summarily affirm the order of the District Court, pursuant to Third Cir.

LAR 27.4 and I.O.P. 10.6. Spataro submitted a brief and a response in opposition to the

motion for summary affirmance, which we have considered.

       We will summarily affirm the order of the District Court because no substantial

question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. The

District Court properly dismissed Spataro’s § 2241 petition for lack of jurisdiction

because a motion filed under § 2255 in the sentencing court is the presumptive means for

a federal prisoner to challenge the validity of his conviction or sentence. See Okereke v.

United States, 307 F.3d 117, 120 (3d Cir. 2002). In certain limited circumstances, a

petitioner may seek relief under § 2241 if the remedy provided by § 2255 is inadequate or

ineffective to test the legality of his detention, see In re: Dorsainvil, 119 F.3d 245, 249-

251 (3d Cir. 1997). Section § 2255 is not inadequate or ineffective, however, simply

because the petitioner is unable to meet the gatekeeping requirements, 28 U.S.C. §

2255(h), for a second § 2255 motion. See Cradle v. United States ex rel. Miner, 290 F.3d

536, 539 (3d Cir. 2002) (per curiam).

       We have, as yet, only applied the § 2255 “safety valve” where the petitioner has

had no prior opportunity to challenge his conviction for actions deemed to be non-

criminal by an intervening change in law. Okereke, 307 F.3d at 120 (citing Dorsainvil,

119 F.3d at 251). In Rosemond, the Supreme Court addressed what the Government

must prove when it accuses a defendant of aiding or abetting the § 924(c) offense of

using or carrying a firearm during and in relation to a crime of violence or drug

1
 A certificate of appealability is not required to appeal from the denial of a § 2241
petition. See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir. 2009).
                                              5
trafficking crime. 134 S. Ct. at 1243. The Court held that the Government must prove

that the defendant “actively participated in the underlying drug trafficking or violent

crime with advance knowledge that a confederate would use or carry a gun during the

crime’s commission.” Id. “[A]dvance knowledge,” the Court stated, means “knowledge

at a time the accomplice can do something with it -- most notably, opt to walk away.” Id.

at 1249-50.

       Here, even assuming that the trial court’s instructions violated Rosemond, when a

petitioner claims he is incarcerated based on conduct that subsequently has been rendered

non-criminal, we must consider whether the record supports his claim of innocence. See

United States v. Tyler, 732 F.3d 241, 247 (3d Cir. 2013). This was a planned execution.

The evidence, as summarized by the sentencing court in denying Spataro’s criminal Rule

29 motion for judgment of acquittal, indicates that, because the attempted murder was a

planned execution, Spataro had advance knowledge that a gun would be used during the

commission of the crime. The sentencing court explained:

              [A] cooperating witness, Giovanni Floridia …, implicated Spataro in
              the murder conspiracy, testifying about Spataro’s role in the plan to
              murder Campanella, as well as the unsuccessful attempt. Floridia’s
              testimony about Spataro’s participation in the murder conspiracy
              included references to meetings in which Spataro participated as
              well as incriminating actions by Spataro both before and after
              Campanella was shot on July 16, 2001. Had the government relied
              exclusively on Floridia’s testimony -- which was not incredible on
              its face -- to establish Spataro’s guilt beyond a reasonable doubt …
              this evidence would have been enough to sustain Spataro’s
              convictions…. But there was more evidence beyond Floridia’s
              testimony that incriminated Spataro. For example, the government
              introduced telephone records that corroborated Floridia’s testimony
              about Spataro’s role in the murder conspiracy. These telephone
              records reflected that, in the period leading up to and immediately
              following the attempted murder, a significant number of telephone
              calls were placed between the cellular telephones of Spataro and
              Vincent DeMartino…, the person who actually shot Campanella. In
                                               6
              particular, Floridia testified that, as he and DeMartino were driving
              away from the location where DeMartino shot Campanella,
              DeMartino called Spataro and said, in part, “Hey, Mike. We
              missed.” The telephone records received into evidence indeed
              reflected that a call had, in fact, been placed from DeMartino’s
              telephone to Spataro’s telephone immediately after DeMartino shot
              Campanella. As far as the Court is concerned, no doubt exists that a
              rational trier of fact could conclude -- as this jury did -- that Spataro
              was guilty of all three charges.

United States v. Spataro, 2006 WL 2010788, *1-2 (E.D.N.Y. July 10, 2006).

       In sum, § 2255 is inadequate or ineffective to test the legality of detention in a

case where the gatekeeping provisions bar a successive petitioner who can successfully

allege actual innocence of the crime of which he was convicted and who, at the time of

his earlier § 2255 motion could not demonstrate that innocence. But, in Spataro’s case,

denying him access to federal court under § 2241 is proper because he cannot allege facts

to support his claim of actual innocence, and therefore the unavailability of relief under §

2255 does not render that provision inadequate or ineffective as to him.

       As to Spataro’s alternative argument, we agree with the District Court that the

holdings in Rosemond and Pinkerton address two distinct and separate theories of

vicarious liability, and that a conviction under a theory of vicarious liability pursuant to

Pinkerton serves as an alternate basis for conviction. Because Pinkerton and Rosemond

address two separate theories of liability, there has been no intervening change in law and

thus the “safety valve” to § 2255 does not apply to Spataro. He has failed to bring his

Pinkerton claim within the Dorsainvil rule and thus the District Court lacked jurisdiction

to consider it in a § 2241 petition.

       For the foregoing reasons, we will summarily affirm the order of the District Court

dismissing Spataro’s § 2241 petition for lack of jurisdiction.

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