                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-23-2005

Santiago v. Apker
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2301




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Recommended Citation
"Santiago v. Apker" (2005). 2005 Decisions. Paper 659.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/659


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HPS -129 (July 2005)                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO. 05-2301
                                  ________________

                                 JOSE M. SANTIAGO,
                                          Appellant

                                           vs.

                               CRAIG APKER, Warden
                       ____________________________________

                   On Appeal From the United States District Court
                       For the Middle District of Pennsylvania
                            (D.C. Civ. No. 05-cv-00285)
                      District Judge: Honorable Malcolm Muir
                   _______________________________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                 JULY 29, 2005
   Before: CHIEF JUDGES SCIRICA, WEIS AND GARTH, CIRCUIT JUDGES

                                (Filed : August 23, 2005)

                              _______________________

                                      OPINION
                              _______________________
PER CURIAM.

             In 1991, in the United States District Court for the Middle District of

Pennsylvania Jose Manual Santiago was convicted of engaging in a continuing criminal




                                            1
enterprise in violation of 21 U.S.C. § 848.1 He has filed a second petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2241 to challenge his conviction. Arguing that he

was innocent of the crime, he claimed that “his right to have a jury determine every fact

essential to punishment” had been violated because the elements of the continuing

criminal enterprise offense “were not charged in the indictment nor proven before the jury

beyond a reasonable doubt.” Petition at 3. In support of his claim, he cited Jones v.

United States, 526 U.S. 227 (1991); Apprendi v. New Jersey, 530 U.S. 466 (2000); Ring

v. Arizona, 536 U.S. 584 (2002); and Blakely v. Washington, 124 S. Ct. 2531 (2004).

Adopting the Report & Recommendation of a Magistrate Judge, the District Court

dismissed Santiago’s petition for lack of jurisdiction, holding that he could not file his

petition under 28 U.S.C. § 2241 because 28 U.S.C. § 2255 was an adequate and effective

means for him to raise his claims. Santiago appeals and requests that the District Court’s

order be summarily reversed.

              Because there is no substantial question on appeal, the District Court’s

order will be summarily affirmed. Santiago cannot bring his petition under 28 U.S.C. §

2241, because a motion to challenge his sentence pursuant to 28 U.S.C. § 2255 cannot be

considered “inadequate or ineffective.” 28 U.S.C. § 2255 (2005). Section 2255 has been

considered inadequate and ineffective for a petitioner convicted and imprisoned for




   1
   Because the parties are familiar with the specifics of Santiago’s conviction and his
subsequent challenges thereto, we do not recount the details here.

                                              2
conduct since deemed not to be criminal. See In re Dorsainvil, 119 F.3d 245, 251 (3d

Cir. 1997). However, § 2255 is not inadequate or ineffective just because a petitioner is

unable to meet its stringent gatekeeping requirements. See id. Specifically, we have held

that § 2255 is not an inadequate or ineffective way to bring claims based on Apprendi.

See Okereke v. United States, 307 F.3d 117, 120-21 (3d Cir. 2002). Claims under Ring

and Blakely are not sufficiently distinguishable from a claim under Apprendi to meet the

In re Dorsainvil exception and permit Santiago to seek relief under § 2241. Cf. Okereke,

307 F.3d at 120-21. Likewise, Jones, in which the Supreme Court construed a statute

unrelated to this case, does not provide Santiago a basis for obtaining relief under § 2241.

              For the reasons stated, the District Court’s order will be summarily

affirmed. Santiago’s motion for summary reversal is denied.




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