Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-11-2003

Largo v. Bailey
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-1643




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                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                        No: 01-1643

                                   RUBEN D. LARGO,
                                          Appellant

                                               v.

                               NANCY BAILEY, WARDEN

                     On Appeal From the United States District Court
                                     for New Jersey
                              D.C. Civil No. 00-cv-06255
                            District Judge: Joseph E. Irenas

                              Submitted: March 31, 2003
                   Before: McKEE, SMITH & COWEN, Circuit Judges

                                   (Filed: June 11, 2003)

                                OPINION OF THE COURT

McKee, Circuit Judge

       We are asked to determine if the district court properly exercised jurisdiction

pursuant to 28 U.S.C. § 2241, and considered the merits of defendant’s claims on the

basis of Apprendi v. New Jersey, 

(2000). As we shall explain, this issue has

been settled by our recent opinion in Okereke v. United States, 

(3d Cir.

2002), which was filed after the supplemental briefing schedule in this case. See Fed. R.

App. P. 34(a)(2); I.O.P. 2.4.1(b). Accordingly, we shall dismiss for lack of jurisdiction

and vacate the district court’s order denying relief on the merits.
                                      I. Background:

       Inasmuch as we write only for the parties who are familiar with the background of

this appeal, we need not reiterate the factual or procedural history except insofar as it may

be helpful to our brief discussion.

       In September 1991, in the Southern District of Florida, Largo pleaded guilty to a

two count indictment charging him with conspiring to possess and possessing with intent

to distribute “a Schedule II narcotic controlled substance, ... containing a detectable

amount of cocaine,” contrary to 21 U.S.C. § 841(a)(1), in violation of 21 U.S.C. §§ 841

and 846, and 18 U.S.C. § 2. He was sentenced to concurrent terms of 188 months

imprisonment. The judgment of conviction was affirmed on appeal and the Supreme

Court denied certiorari. Largo thereafter filed a petition for habeas relief in the District

Court for the Southern District of Florida in M arch of 1994 pursuant to 28 U.S.C § 2255.

That petition was denied after a hearing, and the Court of Appeals for the 11th Circuit

subsequently affirmed the District Court’s judgment. Largo returned to the District Court

for the Southern District of Florida on August 30, 2000, with a second § 2255 petition

challenging the District Court’s finding as to the type and quantity of drug attributable to

him under the Supreme Court’s opinions in Apprendi and Jones v. United States, 

(1999), The District Court dismissed appellant’s petition because he had not first

obtained authorization from the 11th Circuit Court of Appeals as required by 28 U.S.C.

§§ 2255 and 2244(b)(3).



                                              2
        Largo thereafter filed an application with the 11th Circuit Court of Appeals to file

a second § 2255 motion raising his Apprendi claim. The 11th Circuit denied his

application, concluding that “the holdings of Apprendi and Jones have not been ‘made

retroactive to cases on collateral review by the Supreme Court,’” as required by § 2255 ¶

8(2).

        Undeterred, Largo pressed on. He filed the instant petition under § 2241 in the

United States District Court for the District of New Jersey, the district of his confinement.

The District Court exercised jurisdiction under § 2241 based upon the court’s conclusion

that Largo’s claim “is one of the few instances where Dorsainvil, [

(3d Cir.

1997),] operates to permit a § 2241 challenge to the lawfulness of a federal sentence.”

See District Court Memorandum Opinion at 4. However, since Largo’s sentence of 188

months did not exceed the statutory maximum of 20 years imprisonment set forth in 21

U.S.C. § 841(b)(1)(C), the court denied the petition on the merits. Nevertheless, the court

granted a certificate of appealability based on Justice O’Connor’s dissent in Apprendi,

suggesting that the majority’s decision implicates fact finding under the Guidelines even

where the ultimate sentence falls below the statutory maximum. See 

This appeal

followed.1

   1
       After initial briefing, the District Court (prompted in part by the government’s
request for us to provide guidance to the District Courts on this issue) appointed counsel
and ordered supplemental briefing on the issue of “whether the remedy by motion filed
pursuant to 28 U.S.C. § 2255 is inadequate and ineffective to test the legality of a federal
defendant’s detention under the rule of constitutional law set forth in Apprendi v. New
Jersey, 

(2000), where that defendant has previously unsuccessfully

                                              3
                                       II.Analysis:

       As noted by the government, shortly after Largo filed his brief in this appeal, and

less than one month before the government’s brief was filed, we decided Okereke v.

United States, 

(3d Cir. 2002). There, we held that the District Court lacked

jurisdiction to consider Okereke’s Apprendi claims by recharacterizing his § 2255 motion

(his third actually) as a motion for relief pursuant to 28 U.S.C. § 2241. 

We

wrote: Ҥ 2255 was not inadequate or ineffective for Okereke to raise his Apprendi

argument.” 

As a successive § 2255 motion, the District Court thus lacked

jurisdiction to consider its merits. Accordingly, we vacated the District Court’s order.

       Given our decision in Okereke, there can be no doubt that the District Court erred

in concluding that Dorsainvil permits a petitioner in Largo’s position to invoke § 2241 to

challenge the lawfulness of a federal sentence on the basis of an Apprendi claim. See

District Court Memorandum Opinion at 4. Indeed, the court recognized its own error in




challenged his conviction or sentence under § 2255, thus allowing the defendant to
invoke 28 U.S.C. § 2241.” Briefing has been completed and this appeal is ripe for
disposition.
   2
      This conclusion is in agreement with decisions of other Circuit Courts of Appeals.
See Wesson v. United States Penitentiary Beaumont, Texas, 

(5 th Cir. 2002);
San-Miguel v. Dove, 

(4 th Cir. 2002); United States ex rel Perez v. Warden,
FMC Rochester, 

(8 th Cir. 2002). See also Burt v. Hemingway, 

(6 th Cir. Jan. 29, 2003); Taylor v. Ray, 54 Fed. Appx. 315, 

(10 th
Cir. Jan. 10, 2003); Benitez v. FCI Phoenix, 27 Fed. Appx. 917, 

(9 th
Cir. Dec. 28, 2001).

                                             4
that regard prior to our ruling in Okereke decision.3

        We recognize, of course, that Okereke involved a successive § 2255 motion

(treated by the District Court as a § 2241 petition), 4 whereas Largo’s petition was

submitted and treated as one brought under 28 U.S.C. § 2241. However, this variation is

a distinction without a difference insofar as the issue of the District Court’s jurisdiction to

reach the merits of an Apprendi claim is concerned. The law is clear that persons

convicted in federal court are required to bring their collateral attacks challenging the

validity of their convictions and sentences by filing a motion pursuant to 28 U.S.C. §

2255. The only exception which allows recourse to an original writ of habeas corpus is

when § 2255 proves “inadequate or ineffective” to test the legality of the detention

complained of. 28 U.S.C. § 2255 (“savings clause” in paragraph 5); Davis v. United

States, 

, 343 (1974); 

.

        As we noted in Okereke, § 2255 is not inadequate or ineffective to raise an

Apprendi 

. Thus, § 2241 can not be invoked by a “second

petitioner” to have an Apprendi claim reviewed by the District Court.5 See, e.g., Cradle v.


   3
       See Harris v. United States, D. N.J. Civ. No. 00-cv-05194 (entered May 1, 2002).
   4
     See, e.g., Robinson v. Johnson, 

, 139 (3d Cir. 2002)(“When a second or
successive habeas petition is erroneously filed in a district court without the permission of
a court of appeals, the district court’s only option is to dismiss the petition or transfer it to
the court of appeals pursuant to 28 U.S.C. § 1631).”
   5
     Chief Judge Becker likewise arrived at this conclusion in an unpublished opinion
that was issued while supplemental briefing in Largo was being completed. See
Chambers v. Romine, 41 Fed. Appx. 525, 

, *2 (3d Cir. May 6,

                                               5
United States, 

, 538 (3d Cir. 2002)(per curiam)(“[U]nder the explicit terms

of 28 U.S.C. § 2255, unless a § 2255 motion would be ‘inadequate or ineffective,’ a

habeas corpus petition under § 2241 cannot be entertained by the court.”). Otherwise,

Largo and petitioners in similar situations would be able to evade the gatekeeping

requirements enacted by AEDPA and “effectively eviscerate Congress’ intent in

amending § 2255.” 

.

                                     III.Conclusion:

       For the reasons set forth above, we conclude that the District Court erred in

reaching the merits of Largo’s Apprendi claim. Accordingly, the order of the District

Court will be vacated, and Largo’s appeal will be dismissed for lack of jurisdiction.

TO THE CLERK:

       Please file the foregoing opinion.

                                            By the court,




                                                    /s/Theodore A. McKee

                                            Circuit Judge




2002)(“[T]he District Court lacked jurisdiction to entertain Chambers’ s 2241 habeas
petition raising Apprendi.”).

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