Pastor-Alvarez v. Nash ( 2007 )

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Precedential or Non-Precedential: Non-Precedential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DLD-238 NOT PRECEDENTIAL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, 543 U.S. 220
(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, 119 F.3d 245 (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, 307 F.3d 117, 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, 533 U.S. 656 (2001); In re Olopade, 403 F.3d 159 (3d Cir. 2005).
3