                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-12-2002

Okereke v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-1007




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

Recommended Citation
"Okereke v. USA" (2002). 2002 Decisions. Paper 564.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/564


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 2002 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                             NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                           NO.   01-1007


                      UCHENNA H. OKEREKE,
                                       Appellant

                                 v.

                    UNITED STATES OF AMERICA


        On Appeal from the United States District Court
                 for the District of New Jersey
                  (D.C. Civil No. 00-cv-05289)
             District Judge: Hon. Joseph E. Irenas




                           NO. 01-4075


                    UNITED STATES OF AMERICA

                                 v.

                      UCHENNA H. OKEREKE,
                                       Appellant


        On Appeal from the United States District Court
                 for the District of New Jersey
                  (D.C. Crim. No. 93-cr-00108)
             District Judge: Hon. Joseph E. Irenas


           Submitted Under Third Circuit LAR 34.1(a)
                       September 12, 2002

              Before: SLOVITER and RENDELL, Circuit Judges,
                  and McCLURE, District Judge

                 (Filed:    September 12, 2002)



                      OPINION OF THE COURT


SLOVITER, Circuit Judge.
     This is a consolidated appeal in which Appellant, Uchenna H. Okereke, alleges
that the District Court erred for numerous reasons. We do not reach the merits because
the District Court lacked jurisdiction to review Okereke’s 28 U.S.C. 2255 motion.
Furthermore, because Okereke has not only served his prison term but has also been
deported from the United States, all remaining issues regarding sentencing are moot.
                                I.
     Because we write only for the parties who are aware of the facts, we set them out
only briefly.
     On March 3, 1993, Appellant Uchenna Okereke was charged in a single count
indictment with conspiracy "to import into the United States . . . more than 1 kilogram of
heroin" contrary to 21 U.S.C. 952(a) and 960(a)(1) and in violation of 21 U.S.C.
963. His trial began before a jury in the United States District Court for the District of
New Jersey, but on the third day of trial, Okereke retracted his not guilty plea and pled
guilty. At the guilty plea hearing, Okereke admitted to two separate incidents involving
heroin importation. Okereke was sentenced to 135 months in prison and five years of
supervised release. He appealed his final judgment of conviction and sentence to this
court. We affirmed in a memorandum opinion filed December 15, 1994.
     On May 18, 1995, Okereke filed his first motion under 28 U.S.C. 2255. The
District Court granted the portion of the motion seeking resentencing but denied the
claim of ineffective assistance of counsel on its merits. On June 3, 1996, Okereke filed
his second motion under 28 U.S.C. 2255. Because Okereke failed to obtain
certification authorizing consideration of the motion from this court, the District Court
dismissed it as a barred second 2255 motion.
     More than three years later on October 26, 2000, Okereke filed his third 2255
motion. This time, Okereke argued that his Fifth Amendment Due Process rights and
Sixth Amendment right to a jury and notice were violated because the finding that he was
responsible for between three and ten kilograms of heroin was not made by a jury using a
beyond a reasonable doubt standard of proof but instead made by a trial judge at
sentencing using the preponderance of evidence standard. He based this motion on
Apprendi v. New Jersey, 530 U.S. 466 (2000).
     On December 5, 2000, the District Court held that it had jurisdiction to consider
Okereke’s claims by recharacterizing Okereke’s 2255 motion as a motion for relief
pursuant to 28 U.S.C. 2241. The District Court then denied Okereke relief on the
merits of his claim, but issued a certificate of appealability on the Apprendi issue. That
appeal is before us now.
On May 24, 2001, Okereke filed a motion to modify his term of imprisonment
pursuant to 18 U.S.C. 3582(c)(2). The District Court denied Okereke’s motion, and
Okereke appealed. The two appeals were consolidated, and are before us now.
     For the record, Okereke is no longer in the United States. On December 20, 2001,
Okereke was released from federal custody and turned over to the INS for deportation.
Okereke was deported on January 10, 2002.
                               II.
     We have jurisdiction to hear this appeal pursuant to 28 U.S.C 1291 and
2253(a). We exercise plenary review over the District Court’s legal conclusions and
apply a clearly erroneous standard to its factual findings. See Cradle v. United States,
290 F.3d 536, 538 (3d Cir. 2002) (per curiam).
     The appeal in No. 01-1007 is from the District Court’s order recharacterizing
Okereke’s motion under 28 U.S.C. 2255 as one pursuant to 28 U.S.C. 2241, and by
doing so, empowering itself to review the motion on its merits. The government
maintains that the District Court did not have jurisdiction to hear the motion in the first
instance. We agree.
     Okereke argues that his third motion under 2255 was, in fact, a motion made
under 2244, but does not explain why this is important. Section 2244 refers to
procedures and applications necessary to gain certification for successive habeas corpus
petitions from courts of appeals, and must be read in conjunction with 2255. In re
Turner, 267 F.3d 225, 227 (3d Cir. 2001). In any event, the District Court properly
construed Appellant’s third motion as a petition under 2255 for habeas corpus relief.
Motions pursuant to 28 U.S.C. 2255 are the presumptive means by which
federal prisoners can challenge their convictions or sentences that are allegedly in
violation of the Constitution. See Davis v. United States, 417 U.S. 333, 343 (1974). In
In re Dorsainvil, we interpreted the statutory language providing that 2255 must be
used to raise a challenge to the validity of a conviction or sentence unless that section is
"inadequate or ineffective." 119 F.3d 245, 251 (3d Cir. 1997). We found such a
situation in In re Dorsainvil, where the petitioner was in the "unusual position" of a
prisoner with no prior opportunity to challenge his conviction for a crime that an
intervening change in substantive law could negate with retroactive application. Id. In
short, Dorsainvil may have been convicted for conduct the Supreme Court in Bailey v.
United States, 516 U.S. 137 (1995), deemed not to be criminal. See id.
The District Court held that Okereke’s case fit within the narrow exception of In
re Dorsainvil on the ground that Apprendi v. New Jersey, 530 U.S. 466 (2000), was an
intervening change in law that Okereke could not have predicted and could not have used
as the basis of a 2255 motion. However, In re Dorsainvil was a rare situation. A
2255 motion would be inadequate or ineffective only if the petitioner can show a
limitation of scope or procedure would prevent a 2255 proceeding from affording him
a full hearing and adjudication of his wrongful detention claim. See Cradle v. United
States, 290 F.3d 536, 538 (3d Cir. 2002) (per curiam).
The District Court misconstrued the narrowness of our holding in In re Dorsainvil
where we were careful to limit the holding by stating: "We do not suggest that 2255
would be ’inadequate or ineffective’ so as to enable a second petitioner to invoke 2241
merely because that petitioner is unable to meet the stringent gatekeeping requirements of
the amended 2255." 119 F.3d at 251.
Unlike the intervening change in law in In re Dorsainvil that potentially made the
crime for which that petitioner was convicted non-criminal, Apprendi dealt with
sentencing and did not render conspiracy to import heroin, the crime for which Okereke
was convicted, not criminal. Accordingly, under our In re Dorsainvil decision, 2255
was not inadequate or ineffective for Okereke to raise his Apprendi argument. As a
successive 2255 motion, the District Court lacked jurisdiction to consider its merits.
                               III.
We thus proceed to Okereke’s appeal in No. 01-4075 in which he argues that the
District Court erred when it denied his motion to reduce his sentence pursuant to 18
U.S.C. 3582(c). Because Okereke has not only completed his prison sentence but also
has been deported from the United States, the government argues that his appeal is moot.
We agree.
In order for us to exercise our jurisdiction, there must be an Article III, 2 case or
controversy. See Spencer v. Kemna, 523 U.S. 1, 7 (1998). Even if a case or controversy
existed during the district court proceedings, Okereke must show that one currently exists
for us to exercise our jurisdiction. See Chong v. District Director, I.N.S., 264 F.3d 378,
383 (3d Cir. 2001). Furthermore, Okereke must demonstrate that he has suffered or is
threatened with an actual injury traceable to the District Court’s decision that can be
redressed by a favorable decision here. See id. at 384. Because Okereke has failed to
make these requisite showings, his appeal is moot.
In his reply brief, Okereke argues that because his conviction provided the basis
for his deportation, a reversal of his conviction would permit his reentry into the United
States. As Okereke provides us with no basis for overturning his conviction, we are left
with his various arguments in favor of resentencing. Even if we granted him relief on all
of these arguments, his conviction would remain, thereby precluding reentry into the
country. Thus, a favorable decision on our part    namely, a sentence reduction    would
not provide Okereke with the tangible benefit of reentry into the United States.
Accordingly, his appeal is moot.
                               IV.
     For the foregoing reasons, we will affirm the District Court’s order in No. 01-
1007, albeit for other reasons, and we will dismiss the appeal in No. 01-4075.
______________________

TO THE CLERK:

          Please file the foregoing opinion.



                        /s/ Dolores K. Sloviter_____________________________
                    Circuit Judge
