Filed: Dec. 16, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 12-16-2008 David Cruz v. USA Precedential or Non-Precedential: Non-Precedential Docket No. 08-3216 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "David Cruz v. USA" (2008). 2008 Decisions. Paper 101. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/101 This decision is brought to you for free and open access by the Opinions of the Unit
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 12-16-2008 David Cruz v. USA Precedential or Non-Precedential: Non-Precedential Docket No. 08-3216 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "David Cruz v. USA" (2008). 2008 Decisions. Paper 101. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/101 This decision is brought to you for free and open access by the Opinions of the Unite..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
12-16-2008
David Cruz v. USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-3216
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"David Cruz v. USA" (2008). 2008 Decisions. Paper 101.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/101
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 2008 Decisions by an authorized administrator of Villanova
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HLD-15 (November 2008) NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3216
___________
DAVID CRUZ,
Appellant
vs.
UNITED STATES OF AMERICA
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(M.D. Pa. Civ. No. 08-cv-00829)
District Judge: Honorable Christopher C. Conner
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
November 26, 2008
Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges
Filed: December 16, 2008
_________
OPINION
_________
PER CURIAM.
David Cruz, a federal prisoner, appeals an order of the United States
District Court for the Middle District of Pennsylvania dismissing his habeas petition filed
pursuant to 28 U.S.C. § 2241. We will affirm.
1
In December 1997, Cruz was convicted by a federal jury in the District of
New Jersey of conspiracy to distribute, and distribution of, more than fifty grams of crack
cocaine, conspiracy to retaliate against a government witness, killing with attempt to
retaliate, and use of a firearm in a crime of violence. The court imposed three life
sentences, along with consecutive and concurrent sentences of sixty months
imprisonment. See United States v. Cruz, D. N.J. Crim. No. 96-cr-00730. We affirmed
the judgment of convictions and sentences on appeal, see C.A. No. 98-5170, and the
Supreme Court denied Cruz’s petition for a writ of certiorari. In December 1999, he filed
a motion pursuant to 28 U.S.C. § 2255 alleging that counsel rendered ineffective
assistance. In a Memorandum Opinion and Order issued on June 20, 2000, the District
Court concluded that Cruz’s claims were without merit and denied the motion. Cruz
timely appealed. This Court denied his request for a certificate of appealability in an
order issued on April 6, 2001, see C.A. No. 00-2037, and the Supreme Court
subsequently denied his petition for a writ of certiorari.
Cruz then sought relief in the form of a petition for writ of error coram
nobis in the United States District Court for the District of New Jersey. In his coram
nobis petition, it appears that Cruz once again claimed that he received ineffective
assistance of counsel. Cruz’s motion fared no better than his § 2255 motion, and was
denied by the District Court in an order entered on January 10, 2002. Cruz appealed. We
summarily affirmed the District Court’s decision on December 13, 2002, see C.A. No. 02-
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1280, and, once again, the Supreme Court denied certiorari.
Cruz states that he thereafter sought relief in the United States District
Court for the Central District of California where, on June 15, 2005, he filed a habeas
petition pursuant to 28 U.S.C. § 2241. According to Cruz, the District Court dismissed
that petition without prejudice. The Court of Appeals for the Ninth Circuit eventually
denied Cruz’s request for a certificate of appealability, and the Supreme Court denied his
petition for a writ of certiorari.
Undeterred, on May 5, 2008, Cruz filed yet another habeas petition pursuant
to 28 U.S.C. § 2241, this time in the United States District Court for the Middle District
of Pennsylvania. Once again he asserted that counsel rendered ineffective assistance at
trial. Cruz further claimed that he was deprived of a full hearing and fair adjudication of
the ineffective assistance of counsel claims raised in his § 2255 motion, and that he can
now demonstrate that he is actually innocent of the crimes of which he was convicted.
Having concluded that Cruz failed to establish that he was not afforded a full and fair
adjudication of his ineffective assistance of counsel issues, or that his remedy under §
2255 was inadequate or ineffective under the standards set forth in such cases as Cradle v.
United States ex rel. Miner, 290 F.3d 536, 539 (3d Cir. 2002), and Application of
Galante,
437 F.2d 1164, 1165 (3d Cir. 1971)(per curiam), the Magistrate Judge to whom
Cruz’s petition was referred issued a Report recommending that it be dismissed for lack
of jurisdiction. Over Cruz’s objections, the District Court adopted that Report and
3
Recommendation and entered an order on July 11, 2008 denying the petition. This timely
appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. For essentially the
same reasons set forth in the Magistrate Judge’s Report and Recommendation, we will
summarily affirm the order of dismissal.
As the District Court properly concluded, a § 2255 motion is the
presumptive means for a federal prisoner to challenge the validity of a conviction or
sentence, unless such a motion would be “inadequate or ineffective to test the legality of
his detention.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002); 28 U.S.C.
§ 2255 ¶ 5. A § 2255 motion is inadequate or ineffective only when “some limitation of
scope or procedure” prevents a movant from receiving an adjudication of his claim.
Cradle, 290 F.3d at 538. Section 2255 is not inadequate or ineffective merely because a
prior motion has been unsuccessful or because Cruz is unable to meet the stringent
gatekeeping requirements for filing a second or successive § 2255 motion under the
Antiterrorism and Effective Death Penalty Act of 1996.
Okereke, 307 F.3d at 120-21.
See also
Cradle, 290 F.3d at 539.
The “safety valve” provided under § 2255 is extremely narrow and has been
held to apply in unusual situations, such as those in which a prisoner has had no prior
opportunity to challenge his conviction for a crime later deemed to be non-criminal
because of an intervening change in the law. See Okereke, 307 F.3d at 120 (citing In re
4
Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997)). Such is not the case here. Cruz had the
opportunity to challenge his convictions and, indeed, did so. In addition to the challenges
raised on direct appeal, Cruz presented the very claims he seeks to present via the
underlying § 2241 petition in his § 2255 motion filed in the District of New Jersey. Cruz
had the further opportunity to raise any challenge he wished to make with respect to the
District Court’s disposition of his § 2255 motion – either with regard to its construction of
his claims or with respect to the law applied to his collateral motion – in the request for a
certificate of appealability he filed with this Court on appeal.
Moreover, Cruz’s allegation that he is actually innocent of the crimes for
which he was convicted is nothing more than a disguised attempt to resurrect claims
which have been decided adversely to him. He does not argue the existence of evidence –
new or otherwise – tending to prove his innocence. Instead, Cruz merely argues that if
certain evidence were excluded from his trial, there would be insufficient evidence to
sustain the jury’s guilty verdicts. This argument, however, is simply a reworking of the
claims Cruz previously presented unsuccessfully on direct appeal and in his § 2255
motion. We agree with the District Court that the exception identified in In re Dorsainvil
is simply inapplicable in this case, and Cruz may not evade the gatekeeping requirements
of § 2255 by seeking relief under § 2241.
Because the § 2241 petition was properly dismissed, no substantial question
is presented by this appeal. Accordingly, the District Court’s order of dismissal will be
5
affirmed. See Third Circuit LAR 27.4 and I.O.P. 10.6. Cruz’s motion for the
appointment of counsel is denied. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993).
6
