Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-25-2006

Rodriquez-Vera v. Johns
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2651




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Recommended Citation
"Rodriquez-Vera v. Johns" (2006). 2006 Decisions. Paper 556.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/556


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CPS-154                           UNREPORTED - NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO. 04-2651
                                  ________________

                            MOISES RODRIQUEZ-VERA

                                           v.

                             TRACY W. JOHNS, Warden

                    _______________________________________

                    On Appeal From the United States District Court
                       For the Western District of Pennsylvania
                              (D.C. Civ. No. 04-cv-00042)
                       District Judge: Honorable Kim R. Gibson
                    _______________________________________

                      Submitted For Possible Summary Action
                    Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                 February 25, 2005

             BEFORE: ALITO, McKEE and AMBRO, CIRCUIT JUDGES*

                               (Filed: August 25, 2006 )
                              _______________________

                                     OPINION
                              _______________________

PER CURIAM




   *
   At the time this matter was submitted to the Court Judge, now Justice, Alito was a
member of the panel. As Justice Alito has been elevated to the Supreme Court of the
United States, the opinion is filed by a quorum of the panel. 28 U.S.C. §46(d).
       Moises Rodriquez-Vera (“Rodriquez”) appeals from the District Court’s order

dismissing his petition for a writ of habeas corpus. Because Rodriquez’s appeal presents

no substantial question, we will summarily affirm.

       Rodriquez is a federal prisoner incarcerated at the Federal Correctional Institution

in Loretto, Pennsylvania. On January 9, 2002, the United States District Court for the

Middle District of North Carolina sentenced Rodriquez to 87 months in prison following

his guilty plea for possession with intent to distribute cocaine and possession of a firearm

in furtherance of a drug trafficking offense. The United States Court of Appeals for the

Fourth Circuit affirmed. United States v. Rodriguez-Vera, No. 02-4738, 

(4th Cir. Nov. 20, 2003).

       In February 2004, Rodriquez filed the current habeas corpus petition under 28

U.S.C. § 2241 in the Western District of Pennsylvania. In his petition, Rodriquez

attempts to challenge his conviction and sentence under Apprendi v. New Jersey, 

(2000). He also alleges that counsel rendered ineffective assistance by advising

him to plead guilty without informing him of the consequences. The Magistrate Judge to

whom the petition was referred concluded that Rodriquez could not proceed under

§ 2241. The Magistrate Judge advised Rodriquez that his available remedy was a motion

to vacate his sentence filed in the sentencing court under 28 U.S.C. § 2255. The District

Court adopted the Magistrate Judge’s report and recommendation without further

elaboration, and dismissed the petition. Rodriquez appeals. He also moves for leave to



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file a supplemental memorandum in light of Blakely v. Washington, 

(2004).

       A § 2255 motion is the presumptive means by which a federal prisoner can

challenge his conviction or sentence. See Davis v. United States, 

, 343

(1974). A federal prisoner may proceed under § 2241 only if the remedy provided by

§ 2255 is inadequate or ineffective to test the legality of his detention. See 28 U.S.C.

§ 2255; In re Dorsainvil, 

, 249-51 (3d Cir. 1997). “A § 2255 motion is

inadequate or ineffective only where the petitioner demonstrates that some limitation of

scope or procedure would prevent a § 2255 proceeding from affording him a full hearing

and adjudication of his claims.” Cradle v. United States ex rel. Miner, 

, 538

(3d Cir. 2002). Section 2255 is not inadequate or ineffective merely because the

petitioner is unable to meet certain procedural requirements, such as the one-year period

of limitation or the stringent gatekeeping requirements for filing a second or successive

§ 2255 motion. 

       Specifically, we considered in Okereke v. United States, 

(3d Cir.

2002), whether § 2255 is inadequate or ineffective for a federal prisoner to challenge his

sentence under Apprendi. See 

. We explained that

Dorsainvil was the “rare situation” in which an intervening change in law made the crime

for which Dorsainvil had been convicted “non-criminal.” 

Because Apprendi

dealt with sentencing and did not render a conspiracy to import heroin “not criminal,” we



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concluded that § 2255 is not inadequate or ineffective to raise an Apprendi argument. 

       While Rodriquez’s appeal has been pending, the Supreme Court has issued two

landmark decisions applying the rule of Apprendi. The first is Blakely, decided June 24,

2004, on which Rodriquez relies in his request for leave to file a supplemental

memorandum. The other is United States v. Booker, 

(2005), decided

January 12, 2005, which applies Blakely and reaffirms Apprendi in the context of the

Federal Sentencing Guidelines. While we have yet to explicate the meanings of Booker

and Blakely in the context of postconviction remedies, there is no substantial question

that our decision in Okereke remains intact. Because nothing in Booker or Blakely

undermines our conclusion or reasoning in Okereke, we are convinced that § 2255

remains an available remedy for pursuing such claims.

       For these reasons, we conclude that Rodriquez’s appeal presents us with no

substantial question. See Third Circuit L.A.R. 27.4 and I.O.P. 10.6. Accordingly, we

will summarily affirm the District Court’s order dismissing Rodriquez’s habeas corpus

petition. His motion for leave to file a supplemental brief based on Blakely is denied.




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