Ricardo Estupinan v. Booker, 125 S. Ct. 738 2005

1
HPS-75 (June 2006) NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-1379
________________
RICARDO ESTUPINAN,
Appellant
vs.
JOHN NASH, WARDEN,
FCI FORT DIX, NEW JERSEY
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 05-cv-4877)
District Judge: Honorable William H. Walls
_______________________________________
Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
June 2, 2006
Before: SCIRICA, CHIEF JUDGE, WEIS AND GARTH, CIRCUIT JUDGES
Filed:June 30, 2006
_______________________
OPINION
_______________________
PER CURIAM.
Appellant, Ricardo Estupinan, appeals the order of the United States
District Court for the District of New Jersey dismissing his petition for writ of habeas
corpus filed pursuant to 28 U.S.C. § 2241. For the reasons that follow, we will summarily

-- 1 of 4 --

2
affirm the judgment of the district court.
Estupinan is a federal prisoner incarcerated at FCI-Fort Dix. In 1988, the
United States District Court for the District of Puerto Rico sentenced Estupinan to 360
months imprisonment after his conviction for possession with intent to distribute a
controlled substance and aiding and abetting. The United States Court of Appeals for the
First Circuit affirmed Estupinan’s conviction and sentence. In December 1995, Estupinan
filed a motion to vacate his sentence under 28 U.S.C. § 2255, which the sentencing court
denied.
On October 11, 2005, Estupinan filed the current habeas corpus petition
under 28 U.S.C. § 2241 in the District of New Jersey. He alleges three claims, but at the
crux of all his claims is the legal argument that the district court’s enhancement of his
sentence by two levels (from offense level 36 to 38) violates United States v. Booker, 125
S. Ct. 738 (2005), and Apprendi v. New Jersey, 530 U.S. 466 (2000). He admits that he
cannot meet AEDPA’s strict gatekeeping requirements for filing a second or successive
motion under § 2255, but argues that § 2255 therefore provides an “inadequate or
ineffective” remedy for relief on his Booker claim and that he should be permitted to
proceed under § 2241. See In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997).
The district court found that Estupinan’s petition challenging his conviction
and sentence properly would fall under § 2255, and explained that § 2255 is not rendered
inadequate or ineffective merely by the petitioner’s inability to meet the stringent

-- 2 of 4 --

3
requirements for filing a second or successive § 2255 motion. Accordingly, the district
court dismissed the § 2241 petition for lack of jurisdiction. Estupinan timely appealed.
Summary action is warranted when “no substantial question” is presented
by the appeal. See 3d Cir. LAR 27.4; Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 539 (3d
Cir. 2002). After reviewing the record, we conclude that there is no substantial question
presented and will summarily affirm.
We agree with the district court that Estupinan’s claims fall within the
purview of § 2255. A federal prisoner’s challenge to the legality of his conviction and
sentence must be raised in a § 2255 motion, except where the remedy under § 2255 would
be “inadequate or ineffective.” 28 U.S.C. § 2255. See In re Dorsainvil, 119 F.3d 245,
249 (3d Cir. 1997). The “safety-valve” of § 2255 is extremely narrow, and we have held
that it applies in unusual situations, such as when a prisoner has had no opportunity to
challenge his conviction for a crime that is later deemed not to be a crime by an
intervening change in the law. See id.; Okereke v. United States, 307 F.3d 117, 120-21
(3d Cir. 2002). We have held that § 2255 is not “inadequate or ineffective” for prisoners
seeking to raise an Apprendi claim in a § 2241 proceeding. Id. Like Apprendi, Booker
did not change the substantive law as to the elements of the offense for which Estupinan
was convicted. Although he may face substantive and procedural hurdles in presenting
his claims in a § 2255 motion, that alone does not render a § 2255 motion an “inadequate
or ineffective” remedy. See Okereke, 307 F.3d at 120-21. The district court thus

-- 3 of 4 --

Estupinan’s citation to Washington v. Recuenco, 154 Wash.2d 156 (2005) cert.1
granted, 74 U.S.L.W. 3242 (U.S. Oct. 17, 2005)(No. 05-83), does not give us pause in
taking summary action in this case. The Supreme Court’s ultimate determination of what
standard of review applies when reviewing errors under Apprendi and Blakey would have
no bearing on our conclusion here that the district court lacked jurisdiction over
Estupinan’s petition.
properly determined that Estupinan could not raise his claims in a § 2241 petition and that
it lacked jurisdiction to consider Estupinan’s petition under § 2255, as it was not the
sentencing court. See In re Dorsainvil, 119 F.3d at 249.1
For the foregoing reasons, we will summarily affirm the judgment of the
district court.

-- 4 of 4 --