                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-16-2006

Lara v. Smith
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2766




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"Lara v. Smith" (2006). 2006 Decisions. Paper 188.
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DLD-24                                                   NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT


                                  No. 06-2766


                              GIOVANNI LARA,
                                         Appellant

                                       v.

                                JOSEPH SMITH


                 On Appeal From the United States District Court
                     For the Middle District of Pennsylvania
                           (D.C. Civ. No. 06-cv-00650)
                 District Judge: Honorable James F. McClure, Jr.


   Submitted For Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                              October 26, 2006


         Before: BARRY, AMBRO AND FISHER, CIRCUIT JUDGES.

                          (Filed: November 16, 2006)


                                    OPINION




PER CURIAM

    Appellant, Giovanni Lara, was sentenced in October 1997 to life imprisonment


                                        1
plus a concurrent term of ten years after a jury sitting in the United States District Court

for the District of Rhode Island convicted him of carjacking in violation of 18 U.S.C. §

2119(3), and witness intimidation in violation of 18 U.S.C. § 1512(b). Lara’s conviction

and sentence were affirmed on direct appeal. See United States v. Lara, 181 F.3d 183 (1st

Cir.1999), cert. denied, 528 U.S. 979 (1999). His attempt to vacate his sentence under 28

U.S.C. § 2255 was rejected by the Rhode Island District Court in December 2001, and the

Court of Appeals affirmed that decision on May 28, 2002. See Lara v. United States,

C.A. No. 01-2745 (1st Cir. 2002).

       Lara was likewise unsuccessful in the District Court of Rhode Island with his

attempts at relief filed pursuant to 18 U.S.C. § 3582(c)(2) and Fed. R. Civ. P. 60(b).

After the District Court for the Middle District of Pennsylvania dismissed a petition Lara

filed under 28 U.S.C. § 2241, see Lara v. Smith, M.D. Pa. Civ. No. 04-cv-02493, aff’d

132 Fed. Appx. 420 (3d Cir. 2005), he returned to the District Court of Rhode Island and

filed a coram nobis petition. That petition fared no better than Lara’s prior attempts at

collateral relief, and was denied by the District Court on January 20, 2006. See Lara v.

United States, 2006 WL 161599 (D.R.I. 2006). Finally, Lara claims that he thereafter

filed a motion seeking permission to file a second or successive § 2255 motion with the

United States Court of Appeals for the First Circuit, but that his request was denied

because he failed to make the prima facie showing required for the filing of such a

motion. Additionally, Lara asserts that the First Circuit Court of Appeals noted that a §

2255 motion based on new evidence would be untimely in any event. See Objections to

                                              2
Magistrate Judge’s Report at 3.

       Lara, who is currently incarcerated at the United States Penitentiary in Lewisburg,

Pennsylvania, proceeded to file yet another petition for writ of habeas corpus pursuant to

28 U.S.C. § 2241 with the United States District Court for the Middle District of

Pennsylvania. It is the District Court’s dismissal of that petition that is the subject of this

appeal.

       In his § 2241 petition, Lara argues that § 2255 is an inadequate or ineffective

remedy for him at this point because his primary claim is not based on newly discovered

evidence or a new rule of constitutional law. Instead, he alleges that he was unable to

raise a claim in his prior § 2255 motion that his jury was not selected from a

representative cross-section of the community and that the District Court erred by not

conducting a hearing on this issue, because the census statistics necessary to support such

a claim were not available (and, because of financial constraints, could not be procured)

until after his initial § 2255 motion was due to be filed.1 Lara further contends that trial

counsel was ineffective because he failed to request fees for expert investigation work

and census statistics under 18 U.S.C. § 3006A.

       Motions filed pursuant to § 2255 “are the presumptive means by which federal

prisoners can challenge their convictions or sentences that are allegedly in violation of the



   1
      Lara did present a fair cross-section claim on direct appeal. The Court of Appeals
for the First Circuit found that claim to be unavailing. United States v. Lara, 181 F.3d at
191.

                                               3
Constitution.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002) (citation

omitted). Under the explicit terms of 28 U.S.C. § 2255, unless a § 2255 motion would be

“inadequate or ineffective,” a habeas corpus petition cannot be entertained by the court.

See Application of Galante, 437 F.2d 1164, 1165 (3d Cir. 1971). A § 2255 motion 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. Id. (quoting United States ex rel.

Leguillou v. Davis, 212 F.2d 681, 684 (3d Cir. 1954)). See also Cradle v. United States

ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002) (per curiam).

       There can be no doubt that the claims Lara presents in the instant petition fall

within the purview of § 2255. We agree with the District Court that Lara has not

demonstrated that § 2255 is an “inadequate or ineffective” remedy under the

circumstances presented here. Section 2255 is not “inadequate or ineffective” merely

because a petitioner is unable to meet its stringent gatekeeping requirements. In re

Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). Moreover, the “safety-valve” provided

under § 2255 is extremely narrow, and has been held to apply in unusual situations, such

as those in which a prisoner has had no prior opportunity to challenge his conviction for

actions later deemed to be non-criminal by an intervening change in law. See Okereke,

307 F.3d at 120. Lara does not challenge his conviction on the ground that an intervening

change in the law has rendered his actions non-criminal. See id. at 120-21.

       Accordingly, we agree with the District Court’s conclusion that it could not

                                             4
entertain Lara’s petition. We will, therefore, grant the appellee’s motion and summarily

affirm the District Court’s judgment.2




   2
     The parties were advised that, in addition to summary action, the Court would
consider whether a certificate of appealability was necessary. However, because the
District Court properly treated the petition as one filed solely pursuant to § 2241, a
certificate of appealability is not necessary. See 28 U.S.C. § 2253(c)(1)(B); Sugarman v.
Pitzer, 170 F.3d 1145, 1146 (D.C. Cir.1999). 5
