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


7-17-2007

Romero v. Holt
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1201




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Recommended Citation
"Romero v. Holt" (2007). 2007 Decisions. Paper 749.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/749


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DLD-274                                                           NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                ________________

                                       No. 07-1201
                                    ________________

                                   RAFAEL ROMERO,

                                              Appellant

                                              v.

                        RONALD HOLT, Warden, FCI Schuylkill
                       ____________________________________

                     On Appeal From the United States District Court
                         For the Middle District of Pennsylvania
                                (D.C. Civ. No. 06-cv-2179)
                     District Judge: Honorable William W. Caldwell
                      ____________________________________

                        Submitted For Possible Summary Action
                      Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                     June 21, 2007

                Before: BARRY, AMBRO and FISHER, Circuit Judges.

                                  Filed: July 17, 2007
                               _______________________

                                      OPINION
                               _______________________

PER CURIAM

       Rafael Romero appeals the District Court’s order dismissing Romero’s petition

filed pursuant to 28 U.S.C. § 2241. The procedural history of this case and the details of

appellant’s convictions and claims are well-known to the parties, set forth in the District
Court’s thorough opinion, and need not be discussed at length. Briefly, Romero was

convicted of conspiracy to distribute more than five kilograms of cocaine, conspiracy to

murder a federal agent, attempted murder of a federal agent, assault of a federal agent,

possession with intent to distribute cocaine, and use of a firearm during a narcotics

trafficking offense. After unsuccessfully challenging his conviction in the sentencing

court, Romero filed a petition pursuant to 28 U.S.C. § 2241. He alleged that (1) he is

actually innocent of using and carrying a firearm; (2) he is actually innocent of conspiring

to murder a federal agent; and (3) governmental misconduct. The District Court

dismissed the petition. Romero filed a motion for reconsideration which the District

Court denied. Romero then filed a timely notice of appeal. The government has filed a

motion for summary action.

       Romero’s § 2241 petition may not be entertained unless a motion under § 2255 is

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

Previous unsuccessful § 2255 motions are not sufficient to show that a § 2255 motion is

inadequate or ineffective. Litterio v. Parker, 369 F.2d 395, 396 (3d Cir. 1966); see also In

re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). Romero argues that he should be

permitted to seek relief under § 2241 because he is actually innocent. However, Romero

has not shown actual innocence. On appeal, the Court of Appeals for the Second Circuit

found that there was sufficient evidence against Romero, see United States v. Romero,

897 F.2d 47 (2d Cir. 1990), and Romero has presented no new evidence showing that “no

reasonable juror would find him guilty beyond a reasonable doubt.” House v. Bell, 126

                                             2
S. Ct. 2064, 2077 (2006). Romero’s claim that he is actually innocent of using a firearm

based on Bailey v. United States, 516 U.S. 137 (1995), is without merit. United States v.

Casiano, 113 F.3d 420, 427 (3d Cir. 1997).

      Summary action is appropriate if there is no substantial question presented in the

appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by

the District Court, we will summarily affirm the District Court’s order. See Third Circuit

I.O.P. 10.6. The government’s motion for summary action is granted.




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