Haim Yuzary v. Charles Samuels, Jr.

CLD-149 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 08-1026
________________
HAIM YUZARY,
Appellant
v.
CHARLES SAMUELS, JR.
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 05-cv-05917)
District Judge: Honorable Noel L. Hillman
_______________________________________
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
March 6, 2008
Before: AMBRO, FUENTES and JORDAN, Circuit Judges
(Filed : March 17, 2008)
_______________________
OPINION
_______________________
PER CURIAM
Haim Yuzary appeals pro se from an 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 following reasons, we will dismiss the appeal under 28 U.S.C. §

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1915(e)(2)(B).
In 1997, Yuzary was convicted in the United States District Court for the Southern
District of New York (“Southern District Court”) of money laundering and conspiracy to
commit money laundering. See 18 U.S.C. §§ 371 & 1956(a)(2)(B). The Southern
District Court denied his motion for a new trial based on newly-discovered evidence, and
Yuzary was sentenced to 120 months of imprisonment to be followed by 36 months of
supervised release. His direct appeal was unsuccessful. In 2004, Yuzary filed in the
Southern District Court a motion pursuant to 28 U.S.C. § 2255. He raised an ineffective
assistance of counsel claim and argued that his sentence should be vacated under United
States v. Booker, 543 U.S. 220 (2005), and Blakely v. Washington, 542 U.S. 296 (2004).
The Southern District Court concluded that Yuzary’s motion was untimely, see 28 U.S.C.
§ 2255 ¶ 6, and meritless.
Yuzary filed the present § 2241 petition in the United States District Court for the
District of New Jersey, the district in which he is currently confined. He reasserted his
claim that his sentence is unconstitutional under Blakely, argued that newly-discovered
evidence demonstrates his actual innocence, and asserted that his conviction is invalid
because it was not based on properly promulgated laws. The District Court concluded
that it lacked jurisdiction over the § 2241 petition because Yuzary had not shown that
§ 2255 was an inadequate or ineffective remedy for his claims. Yuzary now appeals that
decision.

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We have jurisdiction over the appeal under 28 U.S.C. §1291 and 2253(a) and
exercise plenary review over the District Court’s dismissal. See Okereke v. United
States, 307 F.3d 117, 119 (3d Cir. 2002). Because Yuzary is proceeding in forma
pauperis, we must analyze his appeal for possible dismissal pursuant to 28 U.S.C. §
1915(e)(2)(B). Under that statute, we must dismiss an appeal if it lacks arguable merit in
fact or law. See Neitzke v. Williams, 490 U.S. 319, 325 (1989).
A collateral challenge to a federal sentence must be raised in a motion under
§ 2255 unless such a motion would be inadequate or ineffective to test the legality of the
detention. See § 2255 ¶ 5; Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d
Cir. 2002). A motion under § 2255 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.” Cradle, 290 F.3d at 538. “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 539. The “safety valve” provided under § 2255 is extremely
narrow and provides a remedy only in unusual circumstances, such as where an
intervening change in law decriminalized the conduct for which the petitioner was
convicted. See Okereke, 307 F.3d at 120 (citing In re Dorsainvil, 119 F.3d 245 (3d Cir.
1997)).

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Yuzary’s motion for appointment of counsel is denied. Tabron v. Grace, 6 F.3d1
147, 155 (3d Cir. 1993).
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Yuzary has not demonstrated such a limitation in § 2255’s scope or procedure
here. The claims raised in his § 2241 petition could have been or – in the case of his
Blakely claims – were presented in a motion pursuant to § 2255. In any event, Yuzary’s
claims are meritless. The Supreme Court has not made Blakely retroactive to cases on
collateral review, see In re Olopade, 403 F.3d 159 (3d Cir. 2005), his assertion that “the
laws charged against him do not constitutionally exist” is devoid of merit, see United
States v. Collins, 510 F.3d 697, 698 (7 Cir. 2007), and he falls far short of demonstratingth
that he is actually innocent of the crimes for which he was convicted. Therefore, we will
dismiss the appeal under 28 U.S.C. § 1915(e)(2)(B).1

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