                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-30-2009

Jose Rivera v. Ricardo Martinez
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4108




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

Recommended Citation
"Jose Rivera v. Ricardo Martinez" (2009). 2009 Decisions. Paper 1641.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1641


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 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
BLD-124                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-4108
                                      ___________

                              JOSE GONZALEZ RIVERA,
                                                              Appellant

                                            v.

                         RICARDO MARTINEZ, WARDEN;
                          UNITED STATES OF AMERICA
                      ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                               (D.C. Civ. No. 08-cv-03613)
                        District Judge: Honorable James T. Giles
                      ____________________________________

       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
                                    March 5, 2009

              Before: McKEE, FISHER and CHAGARES, Circuit Judges

                                 (Filed: March 30, 2009)
                                       __________

                                        OPINION
                                       __________

PER CURIAM

       Jose Gonzalez Rivera, a federal prisoner, appeals pro se from the District Court’s

dismissal of his petition for a writ of habeas corpus, which he purported to bring under 28
U.S.C. § 2241. For the following reasons, we will dismiss this appeal as frivolous

pursuant to 28 U.S.C. § 1915(e)(2)(B).

                                             I.

       Rivera was convicted in 1992 of various cocaine-related offenses, including

continuing a criminal enterprise in violation of 21 U.S.C. § 848, and the District Court

sentenced him to life imprisonment. Rivera argued on appeal that the Government had

failed to prove the elements of that charge. We rejected that argument, but remanded for

resentencing on another issue. See United States v. Quintero, 38 F.3d 1317, 1321 n.2 (3d

Cir. 1994). The District Court reduced Rivera’s sentence to 36 years imprisonment and

Rivera appealed again. He argued, among other things, that our previous ruling on the

elements of continuing a criminal enterprise had been called into question by the United

States Supreme Court’s intervening decision in Richardson v. United States, 526 U.S. 813

(1999). We rejected that argument and affirmed. See United States v. Gonzalez-Rivera,

29 Fed. Appx. 848, 849 (3d Cir. 2002).

       Rivera then filed a motion under 28 U.S.C. § 2255 to vacate his conviction and

sentence on the grounds that his counsel had rendered ineffective assistance. The District

Court denied the motion and, after granting a certificate of appealability, we affirmed that

ruling as well. See United States v. Gonzalez-Rivera, 217 Fed. Appx. 166 (3d Cir. 2007).

Rivera also filed another habeas petition, purportedly under § 2241, which the District




                                             2
Court dismissed with prejudice after Rivera did not consent to re-characterize it as a

§ 2255 motion. Rivera appears not to have appealed that ruling.

       Instead, Rivera filed the habeas petition at issue here, again purportedly under

§ 2241. He argues that he is “actually and factually innocent” of continuing a criminal

enterprise, but raises only the very same argument based on Richardson that we rejected

on his second direct appeal. By order entered August 4, 2008, and pursuant to United

States v. Miller, 197 F.3d 644, 652 (3d Cir. 1999), the District Court explained why

Rivera’s claim could not be brought pursuant to § 2241, sought his consent to re-

characterize the petition as a § 2255 motion, and explained that, if he did not consent, the

court would dismiss his putative § 2241 petition with prejudice. Rivera refused to

consent to the re-characterization and insisted that his claim was properly brought under

§ 2241. Accordingly, the District Court dismissed his petition. Rivera appeals.1

                                              II.

       We have granted Rivera leave to proceed in forma pauperis on appeal, so his

appeal is subject to dismissal under 28 U.S.C. § 1915(e)(2)(B) if it is “frivolous.” An

appeal is frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v.




       1
         We have jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a). A
certificate of appealability is not required to appeal the denial of Rivera’s putative § 2241
petition. See Burkey v. Marberry, – F.3d –, No. 07-4782, 2009 WL 385419, at *2 (3d
Cir. Feb. 18, 2009). Our review of the District Court’s legal conclusions is plenary. See
Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002).

                                              3
Williams, 490 U.S. 319, 325 (1989). Rivera’s contention that he should be permitted to

proceed under § 2241 lacks any basis whatsoever.

       Rivera challenges only the validity of his conviction and sentence for continuing a

criminal enterprise. Federal prisoners who challenge the validity (as opposed to the

execution) of their sentences must proceed under § 2255, and thus must satisfy the gate-

keeping requirements of §§ 2244 and 2255, unless a § 2255 motion would be “inadequate

or ineffective” to protect their rights. Cradle, 290 F.3d at 538. That exception is a narrow

one, and applies only when “some limitation of scope or procedure” would prevent

§ 2255 from providing a remedy. Id. Rivera’s sole argument in that regard is that a

§ 2255 proceeding would be inadequate and ineffective because he was denied

“appropriate review and relief” on his Richardson claim in his prior § 2255 proceeding.

Rivera actually raised this claim on his second direct appeal and not in his prior § 2255

proceeding, but, regardless, this argument is frivolous. See In re Dorsainvil, 119 F.3d

245, 251 (3d Cir. 1997) (a “sentencing court’s prior denial of identical claims does not

render § 2255 remedy ‘inadequate or ineffective’”). Accordingly, we will dismiss this

appeal.2


       2
         Rivera does not mention In re Dorsainvil, but that decision does not allow him to
proceed under § 2241. In that case, we allowed a prisoner to proceed under § 2241 when,
after his first § 2255 petition had been denied, the Supreme Court interpreted the statute
of conviction in a way that “decriminalized” the petitioner’s conduct. See id. at 252. We
reasoned that a § 2255 proceeding was inadequate and ineffective because the Supreme
Court’s decision was not of constitutional dimension, and the petitioner thus could not
bring a second or successive § 2255 motion, but that disallowing any challenge would

                                             4
amount to a miscarriage of justice because the petitioner’s conduct no longer constituted a
crime. See id. at 151-52. In this case, by contrast, Rivera seeks to raise an argument that
we already have expressly rejected, so there is no basis for resort to § 2241.

                                            5
