2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-18-2011

Alberto Concepcion v. Donna Zickefoose

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2137

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Recommended Citation

"Alberto Concepcion v. Donna Zickefoose" (2011). 2011 Decisions. Paper 660.

http://digitalcommons.law.villanova.edu/thirdcircuit_2011/660
ALD-248 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-2137

___________

ALBERTO CONCEPCION,

 Appellant

v.

DONNA ZICKEFOOSE

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 10-cv-04210)

District Judge: Honorable Mary L. Cooper

____________________________________

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

July 28, 2011

Before: SCIRICA, HARDIMAN and VANASKIE, Circuit Judges

(Opinion filed: August 18, 2011)

_________

OPINION

_________

PER CURIAM

Alberto Concepcion appeals from an order of the United States District Court for 

the District of New Jersey, which denied his request for permission to file a Petition for 

Writ of Habeas Corpus and related motions. As the appeal does not present a substantial 
2

question, we will summarily affirm the District Court’s order. See 3d Cir. LAR 27.4; 3d 

Cir. I.O.P. 10.6.

In 2000, Concepcion pleaded guilty to one count of conspiring to distribute heroin, 

and the District Court sentenced him to 325 months of imprisonment. This Court 

affirmed. See C.A. No. 00-2132 (May 10, 2001). Concepcion then filed a § 2255 

motion, which the District Court denied. This Court declined to issue a COA. See C.A. 

No. 02-4127 (June 19, 2003). 

Concepcion then filed a RICO complaint against 56 governmental employees and 

officials, including judges, U.S. Attorneys and FBI agents. Concepcion pursued this 

litigation vexatiously; as a result, the District Court entered an order permanently 

enjoining him “from filing further claims in this jurisdiction without leave of the Court.”

Concepcion later filed a motion purportedly brought pursuant to Rule 60(b) of the 

Federal Rules of Civil Procedure, seeking reconsideration of the denial of his § 2255 

motion. The District Court denied the motion as violative of the injunction, and we 

denied a certificate of appealability, noting that the motion sought only to attack 

Concepcion’s underlying conviction, and that the District Court thus lacked jurisdiction 

to consider what was in reality an unauthorized second or successive § 2255 motion. See

C.A. No. 06-3833 (March 13, 2007).

Concepcion filed a request for permission to file a habeas petition pursuant to 28 

U.S.C. § 2241 in August 2010. The District Court dismissed the petition without 

prejudice, and Concepcion eventually paid the filing fee, filed another motion for 
3

permission to file the § 2241 petition, and filed the petition itself (with exhibits). On 

December 3, 2010, the District Court entered an order directing Concepcion to show 

cause within 30 days why the request to file the habeas petition should be granted. The 

order noted that if Concepcion failed to show cause, the request to file would be denied 

and the matter terminated. Concepcion filed a response to the Show Cause order, 

discussing his claims. The District Court denied Concepcion permission to file his 

habeas petition because although Concepcion’s response “was to include the submission 

of a sworn affidavit that the facts upon which he bases his claims are true and include a 

clear statement of the legal bases for his claims,” his response “did not comply with the 

Court’s Order and fail[ed] to show good cause why the Petition for Writ of Habeas 

Corpus should be filed.” The District Court also denied his related motions.1 

Concepcion filed a timely notice of appeal.

We may affirm a district court for any reason supported by the record. Brightwell 

v. Lehman, 637 F.3d 187, 191 (3d Cir. 2011) (citation omitted). It is apparent that 

Concepcion’s petition is not viable under 28 U.S.C. § 2241. Concepcion is trying to 

challenge his 2000 conviction, but a federal prisoner can challenge his conviction or 

sentence under 28 U.S.C. § 2241 only if the remedy provided by 28 U.S.C. § 2255 is 

 

1

Those motions include: “Ex Parte Motion for Clarification & Request for 

Change of Venue from this Court to the Camden U.S. District Court for the District of 

New Jersey,” “Ex Parte Motion for Permission to File a Habeas Corpus Pursuant to 28 

U.S.C. 2241, Regarding Prison Officials Violating, Program Statement 1060.09, Inter 

Alia,” and “Motion for Leave to File Petition.” To the extent Concepcion is appealing 
4

“inadequate or ineffective” to test the legality of his or her detention. Cradle v. U.S. ex 

rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002); Okereke v. United States, 307 F.3d 117, 

120 (3d Cir. 2002). This occurs “only where the petitioner demonstrates that some 

limitation of scope or procedure would prevent” the petitioner from receiving adequate 

adjudication of his or her claims under § 2255. Cradle, 290 F.3d at 538. This exception 

is extremely narrow and applies only in rare circumstances. See, e.g., In re Dorsainvil, 

119 F.3d 245, 251-52 (3d Cir. 1997) (applying exception where an intervening change in 

the law decriminalized the conduct underlying the petitioner’s conviction and he had no 

other opportunity to pursue his claim).

After considering Concepcion’s petition and submissions to this Court, we find

that he has failed to demonstrate that § 2255 is inadequate or ineffective to test the 

legality of his detention, as he raised arguments that could have been raised on direct 

appeal or in his § 2255 motion.

For these reasons, we conclude that this appeal presents “no substantial question,” 

and will therefore summarily affirm the district court’s judgment. See 3d Cir. L.A.R. 

27.4; I.O.P. 10.6.

 

the denial of these motions, we find no error in the District Court’s disposition of the 

motions.