2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-12-2002

Okereke v. USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 01-1007

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Recommended Citation

"Okereke v. USA" (2002). 2002 Decisions. Paper 564.

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 NOT PRECEDENTIAL 

 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

 

 NO. 01-1007 

 

 UCHENNA H. OKEREKE, 

 Appellant 

 v. 

 UNITED STATES OF AMERICA 

 

 On Appeal from the United States District Court 

 for the District of New Jersey 

 (D.C. Civil No. 00-cv-05289) 

 District Judge: Hon. Joseph E. Irenas 

 

 NO. 01-4075 

 

 UNITED STATES OF AMERICA 

 v. 

 UCHENNA H. OKEREKE, 

 Appellant 

 

 On Appeal from the United States District Court 

 for the District of New Jersey 

 (D.C. Crim. No. 93-cr-00108) 

 District Judge: Hon. Joseph E. Irenas 

 

 Submitted Under Third Circuit LAR 34.1(a) 

 September 12, 2002 

 Before: SLOVITER and RENDELL, Circuit Judges, 

 and McCLURE, District Judge 

 

 (Filed: September 12, 2002) 

 

 OPINION OF THE COURT 

SLOVITER, Circuit Judge. 

 This is a consolidated appeal in which Appellant, Uchenna H. Okereke, alleges 

that the District Court erred for numerous reasons. We do not reach the merits because 

the District Court lacked jurisdiction to review Okereke’s 28 U.S.C. 2255 motion. 

Furthermore, because Okereke has not only served his prison term but has also been 

deported from the United States, all remaining issues regarding sentencing are moot. 
 I. 

 Because we write only for the parties who are aware of the facts, we set them out 

only briefly. 

 On March 3, 1993, Appellant Uchenna Okereke was charged in a single count 

indictment with conspiracy "to import into the United States . . . more than 1 kilogram of 

heroin" contrary to 21 U.S.C. 952(a) and 960(a)(1) and in violation of 21 U.S.C. 

963. His trial began before a jury in the United States District Court for the District of 

New Jersey, but on the third day of trial, Okereke retracted his not guilty plea and pled 

guilty. At the guilty plea hearing, Okereke admitted to two separate incidents involving 

heroin importation. Okereke was sentenced to 135 months in prison and five years of 

supervised release. He appealed his final judgment of conviction and sentence to this 

court. We affirmed in a memorandum opinion filed December 15, 1994. 

 On May 18, 1995, Okereke filed his first motion under 28 U.S.C. 2255. The 

District Court granted the portion of the motion seeking resentencing but denied the 

claim of ineffective assistance of counsel on its merits. On June 3, 1996, Okereke filed 

his second motion under 28 U.S.C. 2255. Because Okereke failed to obtain 

certification authorizing consideration of the motion from this court, the District Court 

dismissed it as a barred second 2255 motion. 

 More than three years later on October 26, 2000, Okereke filed his third 2255 

motion. This time, Okereke argued that his Fifth Amendment Due Process rights and 

Sixth Amendment right to a jury and notice were violated because the finding that he was 

responsible for between three and ten kilograms of heroin was not made by a jury using a 

beyond a reasonable doubt standard of proof but instead made by a trial judge at 

sentencing using the preponderance of evidence standard. He based this motion on 

Apprendi v. New Jersey, 530 U.S. 466 (2000). 

 On December 5, 2000, the District Court held that it had jurisdiction to consider 

Okereke’s claims by recharacterizing Okereke’s 2255 motion as a motion for relief 

pursuant to 28 U.S.C. 2241. The District Court then denied Okereke relief on the 

merits of his claim, but issued a certificate of appealability on the Apprendi issue. That 

appeal is before us now. 

On May 24, 2001, Okereke filed a motion to modify his term of imprisonment 

pursuant to 18 U.S.C. 3582(c)(2). The District Court denied Okereke’s motion, and 

Okereke appealed. The two appeals were consolidated, and are before us now. 

 For the record, Okereke is no longer in the United States. On December 20, 2001, 

Okereke was released from federal custody and turned over to the INS for deportation. 

Okereke was deported on January 10, 2002. 

 II. 

 We have jurisdiction to hear this appeal pursuant to 28 U.S.C 1291 and 

2253(a). We exercise plenary review over the District Court’s legal conclusions and 

apply a clearly erroneous standard to its factual findings. See Cradle v. United States, 

290 F.3d 536, 538 (3d Cir. 2002) (per curiam). 

 The appeal in No. 01-1007 is from the District Court’s order recharacterizing 

Okereke’s motion under 28 U.S.C. 2255 as one pursuant to 28 U.S.C. 2241, and by 

doing so, empowering itself to review the motion on its merits. The government 

maintains that the District Court did not have jurisdiction to hear the motion in the first 

instance. We agree. 

 Okereke argues that his third motion under 2255 was, in fact, a motion made 

under 2244, but does not explain why this is important. Section 2244 refers to 

procedures and applications necessary to gain certification for successive habeas corpus 

petitions from courts of appeals, and must be read in conjunction with 2255. In re 

Turner, 267 F.3d 225, 227 (3d Cir. 2001). In any event, the District Court properly 

construed Appellant’s third motion as a petition under 2255 for habeas corpus relief. 

Motions pursuant to 28 U.S.C. 2255 are the presumptive means by which 

federal prisoners can challenge their convictions or sentences that are allegedly in 

violation of the Constitution. See Davis v. United States, 417 U.S. 333, 343 (1974). In 

In re Dorsainvil, we interpreted the statutory language providing that 2255 must be 

used to raise a challenge to the validity of a conviction or sentence unless that section is 

"inadequate or ineffective." 119 F.3d 245, 251 (3d Cir. 1997). We found such a 

situation in In re Dorsainvil, where the petitioner was in the "unusual position" of a 

prisoner with no prior opportunity to challenge his conviction for a crime that an 
intervening change in substantive law could negate with retroactive application. Id. In 

short, Dorsainvil may have been convicted for conduct the Supreme Court in Bailey v. 

United States, 516 U.S. 137 (1995), deemed not to be criminal. See id. 

The District Court held that Okereke’s case fit within the narrow exception of In 

re Dorsainvil on the ground that Apprendi v. New Jersey, 530 U.S. 466 (2000), was an 

intervening change in law that Okereke could not have predicted and could not have used 

as the basis of a 2255 motion. However, In re Dorsainvil was a rare situation. A 

2255 motion would be inadequate or ineffective only if the petitioner can show a 

limitation of scope or procedure would prevent a 2255 proceeding from affording him 

a full hearing and adjudication of his wrongful detention claim. See Cradle v. United 

States, 290 F.3d 536, 538 (3d Cir. 2002) (per curiam). 

The District Court misconstrued the narrowness of our holding in In re Dorsainvil 

where we were careful to limit the holding by stating: "We do not suggest that 2255 

would be ’inadequate or ineffective’ so as to enable a second petitioner to invoke 2241 

merely because that petitioner is unable to meet the stringent gatekeeping requirements of 

the amended 2255." 119 F.3d at 251. 

Unlike the intervening change in law in In re Dorsainvil that potentially made the 

crime for which that petitioner was convicted non-criminal, Apprendi dealt with 

sentencing and did not render conspiracy to import heroin, the crime for which Okereke 

was convicted, not criminal. Accordingly, under our In re Dorsainvil decision, 2255 

was not inadequate or ineffective for Okereke to raise his Apprendi argument. As a 

successive 2255 motion, the District Court lacked jurisdiction to consider its merits. 

 III. 

We thus proceed to Okereke’s appeal in No. 01-4075 in which he argues that the 

District Court erred when it denied his motion to reduce his sentence pursuant to 18 

U.S.C. 3582(c). Because Okereke has not only completed his prison sentence but also 

has been deported from the United States, the government argues that his appeal is moot. 

We agree. 

In order for us to exercise our jurisdiction, there must be an Article III, 2 case or 

controversy. See Spencer v. Kemna, 523 U.S. 1, 7 (1998). Even if a case or controversy 

existed during the district court proceedings, Okereke must show that one currently exists 

for us to exercise our jurisdiction. See Chong v. District Director, I.N.S., 264 F.3d 378, 

383 (3d Cir. 2001). Furthermore, Okereke must demonstrate that he has suffered or is 

threatened with an actual injury traceable to the District Court’s decision that can be 

redressed by a favorable decision here. See id. at 384. Because Okereke has failed to 

make these requisite showings, his appeal is moot. 

In his reply brief, Okereke argues that because his conviction provided the basis 

for his deportation, a reversal of his conviction would permit his reentry into the United 

States. As Okereke provides us with no basis for overturning his conviction, we are left 

with his various arguments in favor of resentencing. Even if we granted him relief on all 

of these arguments, his conviction would remain, thereby precluding reentry into the 

country. Thus, a favorable decision on our part namely, a sentence reduction would 

not provide Okereke with the tangible benefit of reentry into the United States. 

Accordingly, his appeal is moot. 

 IV. 

 For the foregoing reasons, we will affirm the District Court’s order in No. 01- 

1007, albeit for other reasons, and we will dismiss the appeal in No. 01-4075. 

______________________ 

TO THE CLERK: 

 Please file the foregoing opinion. 

 /s/ Dolores K. Sloviter_____________________________ 

 Circuit Judge