                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-17-2008

Yuzary v. Samuel
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1026




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"Yuzary v. Samuel" (2008). 2008 Decisions. Paper 1432.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1432


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CLD-149                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 08-1026
                                   ________________

                                    HAIM YUZARY,

                                                     Appellant

                                             v.

                             CHARLES SAMUELS, JR.
                      ____________________________________

                    On Appeal From the United States District Court
                             For the District of New Jersey
                              (D.C. Civ. No. 05-cv-05917)
                      District Judge: Honorable Noel L. Hillman
                    _______________________________________

         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
                                    March 6, 2008

              Before: AMBRO, FUENTES and JORDAN, Circuit Judges

                                (Filed : March 17, 2008)
                               _______________________

                                       OPINION
                               _______________________

PER CURIAM

       Haim Yuzary appeals pro se from an order of the United States District Court for

the District of New Jersey dismissing his habeas petition filed pursuant to 28 U.S.C.

§ 2241. For the following reasons, we will dismiss the appeal under 28 U.S.C. §
1915(e)(2)(B).

       In 1997, Yuzary was convicted in the United States District Court for the Southern

District of New York (“Southern District Court”) of money laundering and conspiracy to

commit money laundering. See 18 U.S.C. §§ 371 & 1956(a)(2)(B). The Southern

District Court denied his motion for a new trial based on newly-discovered evidence, and

Yuzary was sentenced to 120 months of imprisonment to be followed by 36 months of

supervised release. His direct appeal was unsuccessful. In 2004, Yuzary filed in the

Southern District Court a motion pursuant to 28 U.S.C. § 2255. He raised an ineffective

assistance of counsel claim and argued that his sentence should be vacated under United

States v. Booker, 543 U.S. 220 (2005), and Blakely v. Washington, 542 U.S. 296 (2004).

The Southern District Court concluded that Yuzary’s motion was untimely, see 28 U.S.C.

§ 2255 ¶ 6, and meritless.

       Yuzary filed the present § 2241 petition in the United States District Court for the

District of New Jersey, the district in which he is currently confined. He reasserted his

claim that his sentence is unconstitutional under Blakely, argued that newly-discovered

evidence demonstrates his actual innocence, and asserted that his conviction is invalid

because it was not based on properly promulgated laws. The District Court concluded

that it lacked jurisdiction over the § 2241 petition because Yuzary had not shown that

§ 2255 was an inadequate or ineffective remedy for his claims. Yuzary now appeals that

decision.



                                             2
       We have jurisdiction over the appeal under 28 U.S.C. §1291 and 2253(a) and

exercise plenary review over the District Court’s dismissal. See Okereke v. United

States, 307 F.3d 117, 119 (3d Cir. 2002). Because Yuzary is proceeding in forma

pauperis, we must analyze his appeal for possible dismissal pursuant to 28 U.S.C. §

1915(e)(2)(B). Under that statute, we must dismiss an appeal if it lacks arguable merit in

fact or law. See Neitzke v. Williams, 490 U.S. 319, 325 (1989).

       A collateral challenge to a federal sentence must be raised in a motion under

§ 2255 unless such a motion would be inadequate or ineffective to test the legality of the

detention. See § 2255 ¶ 5; Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d

Cir. 2002). A motion under § 2255 is inadequate or ineffective “only where the petitioner

demonstrates that some limitation of scope or procedure would prevent a § 2255

proceeding from affording him a full hearing and adjudication of his wrongful detention

claim.” Cradle, 290 F.3d at 538. “Section 2255 is not inadequate or ineffective merely

because the sentencing court does not grant relief, the one-year statute of limitations has

expired, or the petitioner is unable to meet the stringent gatekeeping requirements of the

amended § 2255.” Id. at 539. The “safety valve” provided under § 2255 is extremely

narrow and provides a remedy only in unusual circumstances, such as where an

intervening change in law decriminalized the conduct for which the petitioner was

convicted. See Okereke, 307 F.3d at 120 (citing In re Dorsainvil, 119 F.3d 245 (3d Cir.

1997)).



                                             3
       Yuzary has not demonstrated such a limitation in § 2255’s scope or procedure

here. The claims raised in his § 2241 petition could have been or – in the case of his

Blakely claims – were presented in a motion pursuant to § 2255. In any event, Yuzary’s

claims are meritless. The Supreme Court has not made Blakely retroactive to cases on

collateral review, see In re Olopade, 403 F.3d 159 (3d Cir. 2005), his assertion that “the

laws charged against him do not constitutionally exist” is devoid of merit, see United

States v. Collins, 510 F.3d 697, 698 (7 th Cir. 2007), and he falls far short of demonstrating

that he is actually innocent of the crimes for which he was convicted. Therefore, we will

dismiss the appeal under 28 U.S.C. § 1915(e)(2)(B).1




       1
        Yuzary’s motion for appointment of counsel is denied. Tabron v. Grace, 6 F.3d
147, 155 (3d Cir. 1993).

                                              4
