Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-31-2007

Pastor-Alvarez v. Nash
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1402




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Recommended Citation
"Pastor-Alvarez v. Nash" (2007). 2007 Decisions. Paper 1055.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1055


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DLD-238                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                ________________

                                       No. 06-1402
                                    ________________

                        CARLOS MARIO PASTOR ALVAREZ,
                                             Appellant

                                              v.

                            JOHN NASH, Warden, Ft. Dix, NJ
                                 ________________

                    On Appeal From the United States District Court
                              For the District of New Jersey
                               (D.C. Civ. No. 05-cv-04773)
                    District Judge: Honorable Dennis M. Cavanaugh
                                   ________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  May 17, 2007

               BEFORE: BARRY, AMBRO and FISHER, Circuit Judges.

                                   (Filed May 31, 2007)
                                    ________________

                                        OPINION
                                    ________________

PER CURIAM

       In 1996 Carlos Mario Pastor-Alvarez was convicted in the United States District

Court for the Southern District of New York of conspiracy with intent to distribute a

controlled substance in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. Three

years later, after an unsuccessful direct appeal, Pastor-Alvarez filed a motion pursuant to
28 U.S.C. § 2255 which the sentencing court denied. In 2003 he filed a petition pursuant

to 28 U.S.C. § 2241. It too was denied.

       In 2005 Pastor-Alvarez filed another § 2241 petition, this time arguing that his

sentence violated the Sixth Amendment under United States v. Booker, 

(2005). According to Pastor-Alvarez, this is a structural error which he may raise under §

2241 because AEDPA’s restrictions on the filing of second or successive § 2255 motions

render § 2255 “inadequate or ineffective to test the legality of his detention.” See 28

U.S.C. § 2255 ¶ 5. The District Court disagreed, dismissing the motion for lack of

jurisdiction as an unauthorized § 2255 motion. The court also declined to transfer it to

the Second Circuit Court of Appeals to be treated as an application to file a second § 2255

motion. Nevertheless, the court’s dismissal of the petition was without prejudice to

Pastor-Alvarez’s filing his own application. This appeal followed.

       As the District Court correctly explained, Pastor-Alvarez’s claim falls squarely

within § 2255. Although we have held that in certain limited circumstances § 2255 may

be considered “inadequate or ineffective,” In re Dorsainvil, 

(3d Cir. 1997),

we have emphasized that this exception is very narrow. A petitioner may not resort to §

2241 instead of § 2255 unless he had no prior opportunity to challenge his conviction for

actions which an intervening change in the law potentially decriminalized. Okereke v.

United States, 

, 120 (3d Cir. 2002). Like Apprendi (the decision underlying

the petitioner’s argument in Okereke), Booker has no such effect on Pastor-Alvarez’s

conviction.

                                             2
       Because the appeal presents no substantial question,1 we will summarily affirm the

judgment of the District Court.




   1
    The District Court did not err in declining to transfer Pastor-Alvarez’s petition to the
Second Circuit Court of Appeals to be treated as an application for leave to file a second
§ 2255 motion. The Supreme Court has not held that Booker applies retroactively to
cases on collateral review, and none of its decisions, read together, mandate such a result.
See Tyler v. Cain, 

(2001); In re Olopade, 

(3d Cir. 2005).

                                             3