Pasquale Surace v. Warden John Nash; Fbop; United States of America

BPS-347 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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NO. 05-3156
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PASQUALE SURACE
Appellant
v.
WARDEN JOHN NASH;
FBOP; UNITED STATES OF AMERICA
_____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 05-cv-02655)
District Judge: Honorable Jermone B. Simandle
_______________________________________
Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
August 25, 2005
Before: RENDELL, FISHER AND VAN ANTWERPEN, CIRCUIT JUDGES
(Filed September 7, 2005)
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OPINION
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PER CURIAM
Pasquale Surace, a federal prisoner, appeals pro se the May 31, 2005, order of the
United States District Court for the District of New Jersey dismissing his habeas petition
filed pursuant to 28 U.S.C § 2241. For the reasons that follow, we will summarily affirm

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the judgment of the District Court.
According to his § 2241 petition, Surace pled guilty to possession with intent to
distribute in excess of 10 grams of LSD in violation of 21 U.S.C. § 841(a)(1) and failure
to appear for sentencing in violation of 18 U.S.C. § 3146(a)(1) in the United States
District Court for the Eastern District of Virginia. On October 17, 1997, Surace was
sentenced to 132 months’ imprisonment. Surace did not file an appeal from the judgment
of conviction and sentence.
In 1999, Surace filed a motion pursuant to 28 U.S.C. § 2255 in the District Court
for the Eastern District of Virginia alleging that his guilty plea was involuntary and that
he received ineffective assistance of counsel. Surace’s § 2255 motion was denied. In
2005, Surace filed an application with the Court of Appeals for the Fourth Circuit for
permission to file a second or successive § 2255 motion, again arguing that his guilty plea
was involuntary and that he received ineffective assistance of counsel. The application
was denied on March 14, 2005.
Surace, who is incarcerated at FCI-Fort Dix in Fort Dix, New Jersey, then filed the
underlying § 2241 petition in the District Court for the District of New Jersey. In his
§ 2241 petition, Surace alleged that his guilty plea was involuntary and unknowing due to
ineffective assistance of counsel. Specifically, Surace alleged that counsel unlawfully
induced him to plead guilty with affirmative misrepresentations of promised plea
inducements that were never obtainable for an alien client, and failed to inform him of the

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possibility of deportation as a consequence of his conviction. On May 31, 2005, the
District Court dismissed Surace’s § 2241 petition, concluding that Surace had not shown
that § 2255 is inadequate or ineffective such that he should be allowed to proceed under
§ 2241. This timely appeal followed.
A § 2255 motion is the presumptive means by which a federal prisoner can
challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343
(1974). A federal prisoner may proceed under § 2241 only if the remedy provided by
§ 2255 is inadequate or ineffective to test the legality of his detention. See 28 U.S.C.
§ 2255; In re Dorsainvil, 119 F.3d 245, 249-51 (3d Cir. 1997). “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 claims.” Cradle v. United States ex rel. Miner, 290 F.3d 536, 538
(3d Cir. 2002). Section 2255 is not inadequate or ineffective merely because a prior
motion has been unsuccessful or the petitioner is unable to meet the stringent gatekeeping
requirements for filing a second or successive § 2255 motion. See Okereke v. United
States, 307 F.3d 117, 120-21 (3d Cir. 2002); see also Cradle, 290 F.3d at 539. Rather,
§ 2255 is inadequate or ineffective, for example, in the “rare situation” where an
intervening change in law makes the crime for which the petitioner was convicted “non-
criminal.” Okereke, 307 F.3d at 120.
Surace’s situation is not the rare one rendering § 2255 inadequate or ineffective.

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Surace’s challenge to his conviction implicates no intervening change in law such that the
crimes to which he pled guilty are “non-criminal.” There is no doubt that Surace’s claims
fall within the purview of § 2255, and, as the District Court concluded, Surace has not
demonstrated that § 2255 is inadequate or ineffective. That Surace may not have realized
until 2004 that he would be deported to Italy as a result of his conviction, or that his status
as an alien prevented him from obtaining all the possible benefits counsel had advised
him of does not alter this result. In short, Surace’s attempt to circumvent the gatekeeping
provisions of § 2255 is unavailing, and amounts to little more than an end run around the
Fourth Circuit Court of Appeals’ decision denying his application for authorization to file
a second or successive § 2255 motion.
Because this appeal presents no substantial question, we will summarily affirm the
District Court’s May 31, 2005 order.

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