Pastor-Alvarez v. Nash, (3rd Cir. 2007)

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DLD-238 NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

N o . 06-1402

C A R L O S MARIO PASTOR ALVAREZ,

A p p e lla n t

v. J O H N NASH, Warden, Ft. Dix, NJ

O n Appeal From the United States District Court

F o r the District of New Jersey

(D .C . Civ. No. 05-cv-04773)

D is tric t Judge: Honorable Dennis M. Cavanaugh

S u b m itte d For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6

M a y 17, 2007

B E F O R E : BARRY, AMBRO and FISHER, Circuit Judges.

(F ile d May 31, 2007)

OPINION

P E R CURIAM In 1996 Carlos Mario Pastor-Alvarez was convicted in the United States District C o u rt for the Southern District of New York of conspiracy with intent to distribute a c o n tro lle d substance in violation of 21U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. Three ye a rs later, after an unsuccessful direct appeal, Pastor-Alvarez filed a motion pursuant to 2 8U.S.C. § 2255 which the sentencing court denied. In 2003 he filed a petition pursuant to 28U.S.C. § 2241. It too was denied.

In 2005 Pastor-Alvarez filed another § 2241 petition, this time arguing that his s e n te n c e violated the Sixth Amendment under United States v. Booker, 543 U.S. 220 (20 0 5 ). According to Pastor-Alvarez, this is a structural error which he may raise under § 2 2 4 1 because AEDPA's restrictions on the filing of second or successive § 2255 motions re n d e r § 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 ju risd ictio n as an unauthorized § 2255 motion. The court also declined to transfer it to th e Second Circuit Court of Appeals to be treated as an application to file a second § 2255 m o tio n . Nevertheless, the court's dismissal of the petition was without prejudice to P a s to r-A lv a re z 's filing his own application. This appeal followed.

A s the District Court correctly explained, Pastor-Alvarez's claim falls squarely w ith in § 2255. Although we have held that in certain limited circumstances § 2255 may b e considered "inadequate or ineffective," In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997), w e have emphasized that this exception is very narrow. A petitioner may not resort to § 2 2 4 1 instead of § 2255 unless he had no prior opportunity to challenge his conviction for a c tio n s which an intervening change in the law potentially decriminalized. Okereke v. U n ite d 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 c o n v ic tio n .

B e c au s e the appeal presents no substantial question,1 we will summarily affirm the ju d g m e n t of the District Court.

1 The District Court did not err in declining to transfer Pastor-Alvarez's petition to the S e c o n d 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 c a s e s 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).

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