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


7-9-2002

Diaz v. Warden Fairton
Precedential or Non-Precedential: Non-Precedential

Docket No. 00-2581




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Recommended Citation
"Diaz v. Warden Fairton" (2002). 2002 Decisions. Paper 383.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/383


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                              NOT PRECEDENTIAL

              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                           No. 00-2581
                         _______________

                       HECTOR SAMUEL DIAZ

                                v.

                       WARDEN FCI FAIRTON

             Hector Samuel Martinez Diaz, Appellant
               ____________________________________
         On Appeal From the United States District Court
                 For the District of New Jersey
                   (D.C. Civ. No. 00-cv-00980)
            District Judge: Honorable Joseph E. Irenas
             _______________________________________

            Submitted Under Third Circuit LAR 34.1(a)
                          June 24, 2002
          Before: BECKER, Chief Judge, ALITO and AMBRO,
                         Circuit Judges.

                      (Filed: July 9, 2002)
                     _______________________

                             OPINION
                     _______________________

BECKER, Chief Judge.
     Hector Samuel Diaz appeals from an order of the District Court denying his
Petition for habeas corpus brought pursuant to 28 U.S.C. 2241. What appears from his
papers, however, is that Diaz is in reality attempting to collaterally attack his conviction
and sentence in the District Court of the Virgin Islands. This is demonstrated by a
summary of his claims in the margin. The law is clear, however, that 2241 is not an
available alternate for collaterally attacking a federal criminal sentence. Pursuant to 28
U.S.C. 2255, such a post-sentence challenge must be presented by motion to the
sentencing court, and a non-sentencing district court has no jurisdictional authority to
consider it. The exception to 2255, which allows resort to original habeas jurisdiction
under 2241, is efficacious only when a federal prisoner’s ability to test his detention by
motion is inadequate or ineffective.
     Diaz relies on In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997), but it is clear
under Dorsainvil that 2255 is not rendered inadequate or ineffective simply because a
prisoner missed the chance to raise an argument that could have been raised but was not,
or was unsuccessful in raising the argument. Dorsainvil recognizes a highly limited
exception to the barriers erected by the AEDPA, which arose in that case in the
"uncommon situation" of an inmate who, by reason of those barriers, never had an
opportunity to challenge his conviction in light of the Supreme Court’s subsequent
decision in Bailey v. United States, 516 U.S. 137 (1995), which determined that the
offense for which Dorsainvil had been convicted and sentenced was not an offense at all.
     That exception is not applicable here. Diaz failed to demonstrate the manner in
which 2255 was or could be considered inadequate or ineffective to test his continued
detention. He plaintively laments the failures of his prior counsel. But the asserted
failure of counsel to brief one or more sentencing issues on direct appeal does not render
 2255 inadequate.
     The situation is not changed by Diaz’s reliance on Apprendi v. New Jersey, 530
U.S. 466 (2000), which was not even raised in his petition. At all events, Apprendi does
not require that all sentencing enhancement factors be tried to and determined by a jury
as Diaz would have it, but only those, other than a prior conviction, that result in a
sentence beyond the allowable maximum. Vasquez v. United States, 271 F.3d 93, 98,
104 (3d Cir. 2001) (en banc). That is not the case here. Moreover, Apprendi has yet to
be made retroactively applicable by the Supreme Court and, therefore, could have no
application to his sentence in any event. See Harris v. United States, 2002 U.S. App.
LEXIS 4652, at *65 (June 24, 2002) (Thomas, J., dissenting) ("No Court of Appeals, let
alone this Court, has held that Apprendi has retroactive effect.").
     The essence of Diaz’s position is summed up in his Reply Brief:
                    The Appellant has never had a meaningful review of the
          contentions raised on this appeal. It is clear from the order of
          the Virgin Island District Court denying Appellant’s first 28
          U.S.C. 2255 petition that it would not have considered a
          new petition raising the contentions currently before this
          court. No appellate court ever considered the propriety of the
          dismissal of Appellant’s original 28 U.S.C. 2255 petition. It
          is obvious from this record that Appellant’s attempts to set
          forth in a scholarly way the issues which merited
          consideration on petition for habeas corpus and his inability
          to properly protect his rights on appeal were both the direct
          result of the fact that he was proceeding pro se coupled with
          the fact that he has been moved frequently from prison to
          prison both on and off of the mainland of the United States.
          Appellant simply was never at the right place at the right time
          with the right resources to protect his rights. This court has
          the power to finally accord these very important issues the
          attention they deserve and to accord Appellant a meaningful
          review. Whether this court had been presented with a timely
          appeal from the denial of Appellant’s original 28 U.S.C.
          2255 Petition or whether, as is now the case, this court is
          reviewing the decision of the Federal District Court at
          Camden, New Jersey, it is still this court who would be called
          upon to decide the contentions raised by Appellant. Appellant
          requests that, in the interest of fairness, judicial economy and
          finality that this court address the merits of the argument
          raised by him on this appeal and that this court grant the relief
          requested by Appellant in his original brief.

Diaz’s account of his difficulties and his invocation of "fairness, judicial economy and
finality" may have emotional appeal, but it is insufficient to confer upon a federal court
jurisdiction (under 2241) that it does not possess.
     The order of the District Court dismissing the petition for lack of the jurisdiction
will be affirmed.
                    _________________________
TO THE CLERK:
     Please file the foregoing Opinion.
                              BY THE COURT:

                              /s/Edward R. Becker
                              Chief Judg
