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


5-31-2007

Pastor-Alvarez v. Nash
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1402




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Recommended Citation
"Pastor-Alvarez v. Nash" (2007). 2007 Decisions. Paper 1055.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1055


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DLD-238                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                ________________

                                       No. 06-1402
                                    ________________

                        CARLOS MARIO PASTOR ALVAREZ,
                                             Appellant

                                              v.

                            JOHN NASH, Warden, Ft. Dix, NJ
                                 ________________

                    On Appeal From the United States District Court
                              For the District of New Jersey
                               (D.C. Civ. No. 05-cv-04773)
                    District Judge: Honorable Dennis M. Cavanaugh
                                   ________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  May 17, 2007

               BEFORE: BARRY, AMBRO and FISHER, Circuit Judges.

                                   (Filed May 31, 2007)
                                    ________________

                                        OPINION
                                    ________________

PER CURIAM

       In 1996 Carlos Mario Pastor-Alvarez was convicted in the United States District

Court for the Southern District of New York of conspiracy with intent to distribute a

controlled substance in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. Three

years later, after an unsuccessful direct appeal, Pastor-Alvarez filed a motion pursuant to
28 U.S.C. § 2255 which the sentencing court denied. In 2003 he filed a petition pursuant

to 28 U.S.C. § 2241. It too was denied.

       In 2005 Pastor-Alvarez filed another § 2241 petition, this time arguing that his

sentence violated the Sixth Amendment under United States v. Booker, 543 U.S. 220

(2005). According to Pastor-Alvarez, this is a structural error which he may raise under §

2241 because AEDPA’s restrictions on the filing of second or successive § 2255 motions

render § 2255 “inadequate or ineffective to test the legality of his detention.” See 28

U.S.C. § 2255 ¶ 5. The District Court disagreed, dismissing the motion for lack of

jurisdiction as an unauthorized § 2255 motion. The court also declined to transfer it to

the Second Circuit Court of Appeals to be treated as an application to file a second § 2255

motion. Nevertheless, the court’s dismissal of the petition was without prejudice to

Pastor-Alvarez’s filing his own application. This appeal followed.

       As the District Court correctly explained, Pastor-Alvarez’s claim falls squarely

within § 2255. Although we have held that in certain limited circumstances § 2255 may

be considered “inadequate or ineffective,” In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997),

we have emphasized that this exception is very narrow. A petitioner may not resort to §

2241 instead of § 2255 unless he had no prior opportunity to challenge his conviction for

actions which an intervening change in the law potentially decriminalized. Okereke v.

United States, 307 F.3d 117, 120 (3d Cir. 2002). Like Apprendi (the decision underlying

the petitioner’s argument in Okereke), Booker has no such effect on Pastor-Alvarez’s

conviction.

                                             2
       Because the appeal presents no substantial question,1 we will summarily affirm the

judgment of the District Court.




   1
    The District Court did not err in declining to transfer Pastor-Alvarez’s petition to the
Second Circuit Court of Appeals to be treated as an application for leave to file a second
§ 2255 motion. The Supreme Court has not held that Booker applies retroactively to
cases on collateral review, and none of its decisions, read together, mandate such a result.
See Tyler v. Cain, 533 U.S. 656 (2001); In re Olopade, 403 F.3d 159 (3d Cir. 2005).

                                             3
