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


12-5-2007

Perez v. Samuels
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3181




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Recommended Citation
"Perez v. Samuels" (2007). 2007 Decisions. Paper 135.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/135


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 BLD-23                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 07-3181
                                       ___________

                                  AUGUSTINE PEREZ,
                                              Appellant

                                             v.

                         CHARLES E. SAMUELS, JR., Warden
                       ____________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                               (D.C. Civil No. 07-cv-2485)
                      District Judge: Honorable Robert B. Kugler
                      ____________________________________

         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
                                   October 18, 2007
               Before: MCKEE, RENDELL and SMITH, Circuit Judges

                           (Opinion filed: December 5, 2007)
                                       _________

                                         OPINION
                                        _________

PER CURIAM

       Augustine Perez appeals the District Court’s order dismissing his petition filed

pursuant to 28 U.S.C. § 2241. The history of Perez’s conviction and post-conviction

proceedings are well known to the parties, set forth in the District Court’s thorough

opinion, and need not be discussed at length. Briefly, the District Court for the Western
District of Virginia sentenced Perez to 326 months in prison after he was convicted of

drug and firearm charges. He unsuccessfully challenged his conviction and sentence on

direct appeal, in a § 2255 motion, and in a prior § 2241 petition. Perez then filed the

instant § 2241 petition. The District Court dismissed the petition for lack of jurisdiction,

and Perez filed a timely notice of appeal.

       We have jurisdiction under 28 U.S.C. § 1291 and exercise plenary review over the

District Court’s legal conclusions. Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d

Cir. 2002). Under the explicit terms of § 2255, a § 2241 petition cannot be entertained by

a court unless a §2255 motion would be “inadequate or ineffective.” Id. In Cradle, we

explained that


       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. It is the inefficacy of the remedy, not the personal inability to use
       it, that is determinative. 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 538-39 (citations omitted).

       Perez raised his current claims of denial of choice of counsel, actual innocence of

using or carrying a firearm, actual innocence based on recanted and perjured testimony,

and a violation of double jeopardy in his prior § 2241 petition. We affirmed the District

Court’s dismissal of that petition and will not address those claims again.

       Because Perez seeks to challenge his sentence and has not shown that § 2255 is

                                              2
inadequate or ineffective, he may not proceed under § 2241. Summary action is

appropriate if there is no substantial question presented in the appeal. See Third Circuit

LAR 27.4. For the above reasons, as well as those set forth by the District Court, we will

summarily affirm the District Court’s order. See Third Circuit I.O.P. 10.6.




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