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


5-10-2005

Carreras v. DeRosa
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3700




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Recommended Citation
"Carreras v. DeRosa" (2005). 2005 Decisions. Paper 1225.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1225


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DPS-140                                                      NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                    NO. 04-3700
                                 ________________

                               HUMBERT CARRERAS,

                                          Appellant

                                           v.

                                C. J. DEROSA
                    ____________________________________

                  On Appeal From the United States District Court
                           For the District of New Jersey
                           (D.C. Civ. No. 04-cv-03704)
                    District Judge: Honorable Joseph E. Irenas
                  _______________________________________


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
                                 February 17, 2005

            BEFORE: ROTH, BARRY and SMITH, CIRCUIT JUDGES

                                (Filed: May 10, 2005)


                             _______________________

                                     OPINION
                             _______________________

PER CURIAM

     Humbert Carreras, pro se, appeals an order of the United States District Court for
the District of New Jersey denying his petition filed pursuant to 28 U.S.C. § 2241. We

will affirm.

       In 1995, in the United States District Court for the District of Puerto Rico,

Carreras was convicted of conspiracy to possess with intent to distribute cocaine in

violation of 21 U.S.C. §§ 841(a)(1) and 846. He was sentenced to 294 months’

imprisonment. Carreras appealed, and the United States Court of Appeals for the First

Circuit affirmed his conviction and sentence in May 1996.

       Carreras filed a § 2255 motion to vacate in the District of Puerto Rico. The motion

was denied, and Carreras’s appeal was unsuccessful. He also filed a motion for a new

trial pursuant to Federal Rule of Criminal Procedure 33 and two Federal Rule of Civil

Procedure 60(b) motions, all of which were denied.

       In 1999, Carreras filed a § 2241 petition in the District of New Jersey. In that

petition Carreras alleged nine claims challenging the constitutional validity of his

conviction. He argued that his claims were appropriately brought under § 2241 because

he could not avail himself of relief under § 2255 because of AEDPA’s restrictions. The

District Court concluded that Carreras was not entitled under In re Dorsainvil, 119 F.3d

245 (3d Cir. 1997), to bring his claims pursuant to § 2241 because he could not show that

§ 2255 was an inadequate remedy. The Court also concluded that Carreras could not file

a § 2255 motion because he had not been authorized by the First Circuit Court of Appeals

to do so.



                                              2
       Carreras filed the instant petition pursuant to § 2241 in August 2004. In his

petition he claimed that the restriction on second or successive petitions in §§ 2244 and

2255 violates his First Amendment rights by preventing him from seeking redress for

grievances. He also reasserted by reference the claims he raised in the 1999 petition

attacking his conviction.

       The District Court determined that Carreras’s claims attacked his conviction and

were, therefore, not properly raised in a § 2241 petition. The District Court reiterated its

previous conclusion that Carreras could not file a § 2241 petition simply because AEDPA

restricts his use of § 2255. The District Court also noted that Carreras was not entitled to

adjudication of his petition as a § 2255 motion because he had not received permission to

file such a motion from the First Circuit Court of Appeals. The District Court, therefore,

denied Carreras’s § 2241 petition. Carreras timely appealed. We have jurisdiction

pursuant to 28 U.S.C. § 1291.

       We agree with the District Court that Carreras is not entitled to bring his claims

under § 2241. The nature of Carreras’s claims places his petition squarely within the

scope of § 2255. The mere fact that AEDPA prevents his use of § 2255 does not render §

2255 inadequate. See Cradle v. United States ex rel. Miner, 290 F.3d 536, 538-39 (3d

Cir. 2002).

       Summary action is appropriate if there is no substantial question on appeal. See

Third Circuit LAR 27.4. For essentially the reasons set forth by the District Court, we



                                              3
will summarily affirm the District Court’s August 13, 2004 order. See Third Circuit

I.O.P. 10.6.




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