Perez v. Samuels

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
12-5-2007
Perez v. Samuels
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3181
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"Perez v. Samuels" (2007). 2007 Decisions. Paper 135.
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BLD-23 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3181
___________
AUGUSTINE PEREZ,
Appellant
v.
CHARLES E. SAMUELS, JR., Warden
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 07-cv-2485)
District Judge: Honorable Robert B. Kugler
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
October 18, 2007
Before: MCKEE, RENDELL and SMITH, Circuit Judges
(Opinion filed: December 5, 2007)
_________
OPINION
_________
PER CURIAM
Augustine Perez appeals the District Court’s order dismissing his petition filed
pursuant to 28 U.S.C. § 2241. The history of Perez’s conviction and post-conviction
proceedings are well known to the parties, set forth in the District Court’s thorough
opinion, and need not be discussed at length. Briefly, the District Court for the Western
District of Virginia sentenced Perez to 326 months in prison after he was convicted of
drug and firearm charges. He unsuccessfully challenged his conviction and sentence on
direct appeal, in a § 2255 motion, and in a prior § 2241 petition. Perez then filed the
instant § 2241 petition. The District Court dismissed the petition for lack of jurisdiction,
and Perez filed a timely notice of appeal.
We have jurisdiction under 28 U.S.C. § 1291 and exercise plenary review over the
District Court’s legal conclusions. Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d
Cir. 2002). Under the explicit terms of § 2255, a § 2241 petition cannot be entertained by
a court unless a §2255 motion would be “inadequate or ineffective.” Id. In Cradle, we
explained that
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 wrongful
detention claim. It is the inefficacy of the remedy, not the personal inability to use
it, that is determinative. Section 2255 is not inadequate or ineffective merely
because the sentencing court does not grant relief, the one-year statute of
limitations has expired, or the petitioner is unable to meet the stringent
gatekeeping requirements of the amended § 2255.
Id. at 538-39 (citations omitted).
Perez raised his current claims of denial of choice of counsel, actual innocence of
using or carrying a firearm, actual innocence based on recanted and perjured testimony,
and a violation of double jeopardy in his prior § 2241 petition. We affirmed the District
Court’s dismissal of that petition and will not address those claims again.
Because Perez seeks to challenge his sentence and has not shown that § 2255 is
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inadequate or ineffective, he may not proceed under § 2241. Summary action is
appropriate if there is no substantial question presented in the appeal. See Third Circuit
LAR 27.4. For the above reasons, as well as those set forth by the District Court, we will
summarily affirm the District Court’s order. See Third Circuit I.O.P. 10.6.
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