DLD-238                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 13-4600
                                      ____________

                                  ARMANDO NAVAR,
                                              Appellant,

                                             v.

                              WARDEN FORT DIX FCI
                        __________________________________

                     On Appeal from the United States District Court
                             for the District of New Jersey
                              (D.C. Civ. No. 13-cv-04978)
                      District Judge: Honorable Robert B. Kugler
                       __________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    April 24, 2014

             Before: SMITH, HARDIMAN and NYGAARD, Circuit Judges

                              (Opinion filed: June 18, 2014)
                                     ____________

                                        OPINION
                                      ____________


PER CURIAM

       Appellant Armando Navar, a federal prisoner, appeals from an order of the District

Court dismissing his federal habeas corpus petition for lack of jurisdiction. For the

reasons that follow, we will summarily affirm.
       Navar was convicted of numerous federal drug trafficking offenses following a

jury trial in the United States District Court for the Northern District of Illinois. He was

sentenced to a term of imprisonment of 324 months. The Court of Appeals for the

Seventh Circuit affirmed the criminal judgment, see United States v. Recendiz, 557 F.3d

511 (7th Cir. 2009). In August, 2010, Navar filed a motion to vacate sentence, 28 U.S.C.

§ 2255, in the sentencing court, raising several claims of ineffective assistance of counsel.

Navar’s section 2255 motion was denied on the merits, see Navar v. United States, 2011

WL 3584779 (N.D. Ill. August 10, 2011).

       In 2013, Navar sought authorization from the Seventh Circuit to file a second or

successive section 2255 motion on the basis of Lafler v. Cooper, 132 S. Ct. 1376 (U.S.

2012), and Missouri v. Frye, 132 S. Ct. 1399 (U.S. 2012). The motion was denied on the

grounds that these cases did not announce a new rule of constitutional law as required by

28 U.S.C. § 2255(h)(2) for authorization, and that, even if Navar only recently discovered

the existence of plea negotiations in his case, that fact would not demonstrate his

innocence, as required by § 2255(h)(1) for authorization. See Navar v. United States, No.

13-1610 (7th Cir. April 1, 2013) (order).

       Navar, who is incarcerated at the Federal Correctional Institution in Fort Dix, New

Jersey, then filed a petition for writ of habeas corpus, 28 U.S.C. § 2241, in the United

States District Court for the District of New Jersey, claiming that, because of his

counsel’s ineffectiveness in the context of plea negotiations, he was actually innocent of

138 months of his 324-month sentence. For support, Navar relied on Lafler v. Cooper

and Missouri v. Frye. In an order entered on November 8, 2013, the District Court

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dismissed the petition for lack of subject matter jurisdiction, concluding that a section

2255 motion was not inadequate or ineffective to test the legality of his detention.

Moreover, Navar had not alleged facts which would bring him within the section 2255

“safety valve,” see In re: Dorsainvil, 119 F.3d 245, 251-52 (3d Cir. 1997). The District

Court also expressed its agreement with the Seventh Circuit that neither Lafler nor Frye

announced a new rule of constitutional law.

       Navar appeals. We have jurisdiction under 28 U.S.C. § 1291. Our Clerk granted

him leave to appeal in forma pauperis and advised him that the appeal was subject to

summary dismissal under 28 U.S.C. § 1915(e)(2)(B) or summary affirmance under Third

Cir. LAR 27.4 and I.O.P. 10.6. Navar has filed a motion for appointment of counsel and

a response in opposition to summary action.

       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 determined that Navar could not bring his claim in a federal

habeas corpus petition. A prisoner can proceed under 28 U.S.C. § 2241 if a section 2255

motion is “inadequate or ineffective.” Dorsainvil, 119 F.3d at 249. This “safety valve”

applies when a prisoner has been convicted and imprisoned for conduct later deemed not

to be criminal and when he had no earlier opportunity to challenge the conviction. 119

F.3d at 251. Navar does not argue that he is innocent of the drug trafficking offenses.

Rather, he argues that he is innocent of a portion of his sentence (because of counsel’s

ineffectiveness in the matter of negotiating a plea deal). The “safety valve” thus does not

apply. See Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002) (petitioner may

                                              3
not use section 2241 to bring Apprendi claim because Apprendi dealt with sentencing and

did not render conspiracy to import heroin, the crime for which Okereke was convicted,

not criminal).1

       In his motion for appointment of counsel, Navar seeks to raise additional claims

concerning the quantity of drugs involved in his offense and the length of his sentence

which were not raised in his habeas corpus petition or addressed by the District Court.

We decline to address these claims for the first time on appeal. See Harris v. City of

Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994).

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

dismissing the federal habeas corpus petition for lack of jurisdiction. Appellant’s motion

for appointment of counsel is denied.




1
  We also agree with the District Court that neither Lafler nor Frye announced a new rule
of constitutional law, as required for authorization to file a second or successive section
2255 motion. Each case merely clarified how Strickland v. Washington, 466 U.S. 668,
687 (1984), applies in the plea negotiation context. In Lafler, trial counsel gave the
defendant incorrect advice regarding whether to reject a plea offer. The defendant went
to trial and received a much higher sentence. In Frye, trial counsel failed to inform the
defendant of a plea offer. As the Supreme Court explained, “[c]ourts have recognized
claims of this sort for over 30 years[.]” Lafler, 132 S. Ct. at 1389.
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