17-3773-pr
Talada v. Cole


                             UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT


                                   SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 12th day of October, two thousand eighteen.

PRESENT:         JOSÉ A. CABRANES,
                 ROBERT D. SACK,
                              Circuit Judges,
                 JOHN G. KOELTL,
                              District Judge.*



CHAD TALADA,

                        Petitioner-Appellant,                       17-3773-pr

                        v.

DAVID V. COLE, SHERIFF, STEUBEN COUNTY JAIL,

                        Respondent-Appellee.



     *
    Judge John G. Koeltl, of the United States District Court for the Southern District of New
York, sitting by designation.

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FOR PETITIONER-APPELLANT:                                   ANNE M. BURGER, Assistant Federal
                                                            Public Defender, Federal Public
                                                            Defender’s Office, Western District of
                                                            New York, Rochester, NY.

FOR RESPONDENT-APPELLEE:                                    TIFFANY H. LEE, Assistant United States
                                                            Attorney, for James P. Kennedy, Jr.,
                                                            United States Attorney for the Western
                                                            District of New York, Rochester, NY.

       Appeal from a November 13, 2017 judgment of the United States District Court for the
Western District of New York (Charles J. Siragusa, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

        Petitioner-Appellant Chad Talada (“Talada”) appeals the District Court’s judgment denying
his application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. We affirm the judgment of
the District Court; Talada is ineligible for relief under section 2241 because a remedy under the
related provision 28 U.S.C. § 2255 would not have been “inadequate or ineffective” within the
meaning of that section.

                                                   I.

         In 2009, the U.S. District Court for the Southern District of West Virginia convicted Talada
of one count of failure to register as a sex offender in violation of the Sex Offender Registration and
Notification Act (“SORNA”), 18 U.S.C. § 2250. SORNA as originally enacted in 2006 did not apply
to Talada because the statute was not retroactive and Talada had been convicted of an arguably
applicable sex offense several years before. But after enactment the Attorney General promulgated a
rule that made SORNA apply retroactively, requiring even sex offenders such as Talada, who had
been convicted of a sex offense before SORNA became law, to register under the terms of the
statute. Talada argued both in the Southern District of West Virginia and on appeal in the Fourth
Circuit that the Attorney General had promulgated the retroactivity rule in violation of the
Administrative Procedure Act and that his conviction was therefore invalid. Both courts rejected
that argument; controlling Fourth Circuit precedent already held that the retroactivity rule did not
violate the Administrative Procedure Act. United States v. Talada, 631 F. Supp. 2d 797, 812–15
(S.D.W. Va. 2009), aff’d, 380 F. App’x 255, 257 (4th Cir. 2010) (citing United States v. Gould, 568 F.3d


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459 (4th Cir. 2009)). The Supreme Court also denied his petition for certiorari. Talada v. United States,
562 U.S. 1111 (2010).

         After his direct appeals failed, Talada brought a collateral attack on his conviction seven
years later, in 2016. At this point he was in New York and had pleaded guilty in the U.S. District
Court for the Western District of New York to a new charge, one count of knowingly receiving
child pornography following a prior conviction in violation of 18 U.S.C. §§ 2252(a)(2)(A) and
2252A(b)(1). Talada had not brought a collateral attack on his SORNA conviction within the one-
year time limit set by 28 U.S.C. § 2255. But having pleaded guilty to the new charge, and now being
in confinement, he instead applied to the Western District of New York for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. The District Court denied his application, and Talada now appeals
that decision.

                                                   II.

       We review de novo the denial of an application for a writ of habeas corpus filed pursuant to
28 U.S.C. § 2241. Adams v. United States, 372 F.3d 132, 134 (2d Cir. 2004).

        Usually a prisoner’s only means of collateral attack on a conviction is to file a motion
pursuant to 28 U.S.C. § 2255. See Triestman v. United States, 124 F.3d 361, 373 (2d Cir. 1997). The
prisoner may instead apply for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 if and only if
“the remedy by motion [pursuant to 28 U.S.C. § 2255] is inadequate or ineffective to test the legality
of his detention.” 28 U.S.C. § 2255(e); see also Triestman, 124 F.3d at 373–74. We have held that the
remedy by motion under section 2255 is “inadequate or ineffective” in, at a minimum, any case in
which the prisoner is not eligible to file a motion under section 2255 “and in which the failure to
allow for collateral review would raise serious constitutional questions.” Triestman, 124 F.3d at 377.1

       We conclude that the District Court did not err by denying the writ in the circumstances
presented here.

       Talada concedes that he is not eligible for relief under section 2255 because he failed to file a
motion within the specified one-year time limit. But he argues that relief under section 2255 would
have been “inadequate or ineffective” because Fourth Circuit precedent already foreclosed the
argument he would have made in a collateral attack—namely, that his conviction is invalid because it




    1
     For explanation of the history of and differences between applications for writs under section
2241 and applications for writs under section 2255, see Triestman v. United States, 124 F.3d 361, 373–
74 (2d Cir. 1997).

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rested on an interpretation of SORNA that violated the Administrative Procedure Act and was
therefore itself invalid. For this reason he argues that he is entitled to a writ under section 2241.

        We do not see why section 2255 relief was “inadequate or ineffective” in Talada’s case.
Talada was certainly able to test the legality of his detention under section 2255. The problem for
him was that such testing would have served no purpose, since his detention was in fact legal under
the applicable law of the Fourth Circuit. “[T]he remedy afforded by [section] 2255 is not rendered
inadequate or ineffective merely because an individual has been unable to obtain relief under that
provision.” Id. at 376 (quoting In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997)). We see no serious
constitutional question—including, contrary to Talada’s argument in his opening brief, no question
under the Suspension Clause of the Constitution—posed by denying him a writ of habeas corpus
pursuant to section 2241 under these circumstances.

                                           CONCLUSION

       We have reviewed all of the arguments raised by Talada on appeal and find them to be
without merit. We AFFIRM the November 13, 2017 judgment of the District Court.


                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




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