Felipe Silvestre v. John Yost, Warden

BPS-41
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NOS. 05-3800 & 05-4169
________
FELIPE SILVESTRE,
Appellant
v.
JOHN YOST, WARDEN
_______________________________________
Appeals From the United States District Court
For the Western District of Pennsylvania
(D.C. Civil No. 05-cv-00246J)
District Judge: Honorable Kim R. Gibson
_______________________________________
Submitted For Possible Summary Action
Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
November 3, 2005
BEFORE: RENDELL, AMBRO and GREENBERG, Circuit Judges
(Filed : November 30, 2005)
________________
OPINION OF THE COURT
_______________

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Silvestre also appeals the District Court’s denial of his motion to alter or amend1
judgment pursuant to Fed. R. Civ. Pro. 59(e), No. 05-4169. The Clerk of the Court has
consolidated these two appeals for all purposes.
2
PER CURIAM
Felipe Silvestre appeals from the District Court’s order dismissing his petition for
a writ of habeas corpus under 28 U.S.C. § 2241. Because Silvestre’s appeal presents no1
substantial question, we will grant the Government’s motion for summary affirmance.
On December 21, 1993, the United States District Court for the Southern District
of New York sentenced Silvestre to 262 months in prison following his conviction by a
jury for conspiracy to distribute crack cocaine and heroin in violation of 21 U.S.C. § 846.
The United States Court of Appeals for the Second Circuit affirmed. United States v.
Silvestre, 33 F.3d 49 (2d Cir. 1994). In January 1999, Silvestre filed a motion to vacate
his sentence under 28 U.S.C. § 2255 in the Southern District of New York. On June 30,
1999, the sentencing court dismissed Silvestre’s motion as untimely. Silvestre v. United
States, 55 F. Supp. 2d 266, 266 (S.D.N.Y. 1999).
On November 16, 2001, Silvestre filed his first petition for habeas corpus under 28
U.S.C. § 2241 in the Western District of Pennsylvania challenging his sentence under
Apprendi v. New Jersey, 530 U.S. 466 (2000). The District Court treated the petition as a
motion under § 2255 and transferred it to the Southern District of New York. Silvestre v.
Shearin, No. 00-0309 (W.D. Pa. Feb. 28, 2001). The Southern District of New York, in
turn, transferred it to the Second Circuit, Silvestre v. Shearin, No. 01-5707 (S.D.N.Y.

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3
June 29, 2001), which denied Silvestre permission to file a second or successive § 2255
motion. Silvestre v. Shearin, No. 01-3764 (2d Cir. Feb. 24, 2004). On February 25, 2005,
Silvestre again asked the court of appeals for permission to file a second or successive
§ 2255 motion, this time based on the Supreme Court’s recent decisions in Blakely v.
Washington, 542 U.S. 296 (2004), and United States v. Booker, 125 S. Ct. 738 (2005).
The court of appeals denied Silvestre permission, finding that the rule in Booker did not
apply retroactively to his case. Silvestre v. Shearin, No. 05-0841 (2d Cir. Mar. 23, 2005).
On May 2, 2005, Silvestre filed the current habeas corpus petition under § 2241,
raising the same Booker claim. The District Court concluded that Silvestre could not
proceed under § 2241 and dismissed his petition as a second or successive § 2255 motion.
Silvestre filed a motion to amend or alter the judgment under Fed. R. Civ. P. 59(e), which
was denied. He filed timely notices of appeal from both rulings, and the appeals have
been consolidated for all purposes.
Generally, a challenge to the validity of a federal conviction or sentence must be
brought in a § 2255 motion. 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 § 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

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Silvestre was advised that this Court would consider whether to issue a certificate of2
appealability. Because this petition is brought under § 2241, no certificate of
appealability is required. See 28 U.S.C. § 2253(c)(1)(B); Sugarman v. Pitzer, 170 F.3d
1145, 1146 (D.C. Cir. 1999).
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 the petitioner was denied relief or is
unable to meet the requirements for filing a second or successive motion. Id. at 539.
In Okereke v. United States, 307 F.3d 117, 121 (3d Cir. 2002), we held that § 2255
is not inadequate or ineffective for prisoners seeking to raise Apprendi claims. Similarly,
§ 2255 is not inadequate or ineffective to raise a claim under Booker or Blakely, each of
which is an extension of Apprendi. Silvestre’s petition does not fall within the narrow
exception of Dorsainvil. Unlike the “unusual circumstances” in Dorsainvil, the Supreme
Court’s decisions in Booker and Blakely did not decriminalize the conduct for which
Silvestre was convicted. See Okereke, 307 F.3d at 250.
In short, upon consideration of Silvestre’s petition and “Written Arguments
Opposing Summary Action,” we conclude that his appeal presents us with no substantial
question. See Third Circuit L.A.R. 27.4 and I.O.P. 10.6. Accordingly, we grant the
Government’s motion for summary affirmance and will affirm the District Court’s order.2

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