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


8-26-2005

Colon v. Williamson
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2306




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation
"Colon v. Williamson" (2005). 2005 Decisions. Paper 650.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/650


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
DPS-288                                                    NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                   No. 05-2306
                                ________________

                                   JOSE COLON
                                           Appellant

                                         v.

                    T. WILLIAMSON, Warden FCI Allenwood;
                        UNITED STATES OF AMERICA
                             _________________

                  On Appeal From the United States District Court
                      For the Middle District of Pennsylvania
                           (D.C. Civil No. 04–CV-01991)
                   District Judge: Honorable Richard P. Conaboy
                               __________________

                    Submitted For Possible Summary Action
                   Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  June 23, 2005

            Before: ROTH, BARRY AND SMITH, CIRCUIT JUDGES

                              (Filed August 26, 2005)




                                     OPINION




PER CURIAM

     Jose Colon appeals the dismissal of his habeas petition under 28 U.S.C. § 2241 by
the District Court for the Middle District of Pennsylvania.

       Colon was convicted in the Southern District of New York of two drug offenses

and was sentenced to two consecutive 20-year sentences. Colon, who is presently

confined in the Middle District of Pennsylvania, filed a § 2241 habeas petition claiming

that there was no factual basis for his enhanced sentence under the second count, and that

both sentences are unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000).

The District Court concluded that a § 2241 habeas petition was not the proper avenue for

Colon to seek relief, and denied the petition without prejudice to Colon seeking to file a §

2255 motion in the appropriate court.

       A § 2255 motion filed in the District Court which sentenced him is the

presumptive means for a federal prisoner to challenge his sentence. 28 U.S.C. § 2255;

Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). A § 2241 petition may not

be entertained unless a motion under § 2255 would be “inadequate or ineffective to test

the legality of [the] detention.” 28 U.S.C. § 2255. A § 2255 motion is not “inadequate or

ineffective” merely because the petitioner can not meet the stringent gate keeping

requirements of § 2255. Okereke, 307 F.3d at 120. As found by the District Court, Colon

has not made the requisite showing, and thus the petition may not be entertained.

       Accordingly, we will summarily affirm. Third Circuit LAR 27.4; Third Circuit

I.O.P. 10.6.




                                             2
