DLD-162 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 16-3710

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MICHAEL SPATARO,

Appellant

v.

WARDEN FORT DIX FCI

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On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civ. No. 1-15-cv-01736)

District Judge: Noel L. Hillman

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Submitted on a Motion for Summary Affirmance 

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

March 16, 2017

Before: CHAGARES, VANASKIE and KRAUSE, Circuit Judges

(Opinion filed: April 4, 2017)

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OPINION*

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PER CURIAM

Michael Spataro appeals from an order of the District Court dismissing his petition 

for writ of habeas corpus, 28 U.S.C. § 2241, for lack of jurisdiction. For the reasons that 

follow, we will summarily affirm.
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Spataro was charged in the United States District Court for the Eastern District of 

New York with participating in a conspiracy to murder Joseph Campanella, an alleged 

soldier in the Colombo crime family. The evidence at trial consisted of witness 

testimony, telephone records, audio recordings, and photographs, showing that, on July 

16, 2001, Campanella was shot by Vincent DeMartino and that Spataro had participated 

in the planning of that unsuccessful attempt to murder Campanella. Following a jury 

trial, Spataro was convicted of conspiracy to commit murder in aid of racketeering, in 

violation of 18 U.S.C. § 1959(a)(5), assault with a dangerous weapon in aid of 

racketeering, in violation of 18 U.S.C. § 1959(a)(3), and using and carrying a firearm 

during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). 

The Court of Appeals for the Second Circuit affirmed the criminal judgment, but vacated 

and remanded for resentencing, see United States v. Persico, 293 F. App’x 24, 27 (2d Cir. 

2008). The sentencing court resentenced Spataro on October 15, 2009, to 120 months’ 

imprisonment on the third count, to run consecutively to the 168- and 120-month 

concurrent sentences previously imposed on Counts 1 and 2, respectively, for a total 

sentence of 288 months.

Spataro filed a motion to vacate sentence, 28 U.S.C. § 2255, in the sentencing 

court, arguing that his trial counsel made numerous errors that amounted to ineffective 

assistance of counsel. Specifically, he asserted that counsel failed to adequately 

investigate and present a viable alibi defense, failed to effectively challenge the 

Government’s primary witness, and failed to retain a reliable expert witness regarding 

certain telephone records. On February 19, 2013, the § 2255 motion was denied on the 

merits, see Spataro v. United States, 2013 WL 618426 (E.D.N.Y. Feb. 19, 2013).
3

At issue in this appeal, on March 9, 2015, Spataro filed a pro se petition for writ of 

habeas corpus, 28 U.S.C. § 2241, in the United States District Court for the District of 

New Jersey, where he is currently confined. Spataro alleged that he is actually innocent 

of aiding and abetting a § 924(c) offense, in light of the Supreme Court’s decision in 

Rosemond v. United States, 134 S. Ct. 1240 (2014); and, in the alternative, he argued that 

he may proceed under § 2241 because Rosemond is in direct conflict with the Pinkerton

instruction given at his trial, see Pinkerton v. United States, 328 U.S. 640, 646-48 (1946) 

(permitting conviction of defendant for acts by a coconspirator that were “done in 

furtherance of the conspiracy” and that could have been “reasonably foreseen as a 

necessary or natural consequence” of the conspiracy). Specifically, Spataro argued that 

he did not know that Martino possessed a gun until moments before it was used to wound 

Campanella. Spataro contends that the trial court’s aiding and abetting instructions were 

erroneous because they did not require the jury to find that he knew in advance that a gun 

would be involved in the crime, as required by Rosemond. 

The Government moved to dismiss the § 2241 petition for lack of jurisdiction, 

arguing that its burden of proof at Spataro’s trial actually was more stringent than 

Rosemond’s standard because, in the Second Circuit prior to Rosemond, a defendant 

could only be convicted of aiding and abetting a § 924(c) offense if he performed some 

act that directly facilitated or encouraged the use or carrying of a firearm. Citing a not 

precedential summary order, the Government argued that the Second Circuit has since 

noted that Rosemond effectively lightened the standard for proving aiding and abetting in 

that circuit, see United States v. Rivera, 571 F. App’x 55, 59 n.5 (2d Cir. 2014) (holding 

of Rosemond “expanded aiding and abetting liability under Section 924(c) as previously 
4

recognized by this Court”). With respect to Spataro’s argument that the breadth of the 

Pinkerton theory of liability is incompatible with Rosemond, the Government argued that 

“the same discordance” identified by Spataro between the Pinkerton and “aiding and 

abetting” standards of proof existed at the time of his conviction under the law of aiding 

and abetting law in the Second Circuit, and thus he could have made that argument on 

direct appeal or in his § 2255 motion.

Counsel then entered an appearance on behalf of Spataro and submitted a response 

in opposition to dismissal, arguing that the Rosemond claim had merit because the 

sentencing court did not charge the jury that the Spataro must have had advance 

knowledge that a firearm would be used, and that the court’s charge that a defendant must 

have performed some act that directly facilitated or encouraged the perpetrator in the use 

or carrying of a firearm was not tantamount to a charge that a defendant must have 

advance knowledge that a firearm would be used.

In an order entered on July 21, 2016, the District Court granted the Government’s 

motion and dismissed the § 2241 petition for lack of jurisdiction. The District Court 

agreed with the Government that Rosemond effectively lightened the standard for 

proving aiding and abetting a § 924(c) offense in the Second Circuit. The Court also held 

that Spataro had an earlier opportunity to seek judicial review of his claim that the 

Pinkerton theory of liability is incompatible with the Second Circuit standard for proving 

aiding and abetting a § 924(c) offense, and, that, in any event, the holdings in Rosemond

and Pinkerton address two distinct and separate theories of vicarious liability. 
5

Spataro appeals. We have jurisdiction under 28 U.S.C. § 1291.1 The Government 

has moved to summarily affirm the order of the District Court, pursuant to Third Cir. 

LAR 27.4 and I.O.P. 10.6. Spataro submitted a brief and a response in opposition to the 

motion for summary affirmance, which we have considered.

We will summarily affirm the order of the District Court because no substantial 

question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. The 

District Court properly dismissed Spataro’s § 2241 petition for lack of jurisdiction 

because a motion filed under § 2255 in the sentencing court is the presumptive means for 

a federal prisoner to challenge the validity of his conviction or sentence. See Okereke v. 

United States, 307 F.3d 117, 120 (3d Cir. 2002). In certain limited circumstances, a 

petitioner may seek relief under § 2241 if the remedy provided by § 2255 is inadequate or 

ineffective to test the legality of his detention, see In re: Dorsainvil, 119 F.3d 245, 249-

251 (3d Cir. 1997). Section § 2255 is not inadequate or ineffective, however, simply 

because the petitioner is unable to meet the gatekeeping requirements, 28 U.S.C. § 

2255(h), for a second § 2255 motion. See Cradle v. United States ex rel. Miner, 290 F.3d 

536, 539 (3d Cir. 2002) (per curiam). 

We have, as yet, only applied the § 2255 “safety valve” where the petitioner has 

had no prior opportunity to challenge his conviction for actions deemed to be noncriminal by an intervening change in law. Okereke, 307 F.3d at 120 (citing Dorsainvil, 

119 F.3d at 251). In Rosemond, the Supreme Court addressed what the Government 

must prove when it accuses a defendant of aiding or abetting the § 924(c) offense of 

using or carrying a firearm during and in relation to a crime of violence or drug 

 

1 A certificate of appealability is not required to appeal from the denial of a § 2241 

petition. See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir. 2009).
6

trafficking crime. 134 S. Ct. at 1243. The Court held that the Government must prove 

that the defendant “actively participated in the underlying drug trafficking or violent 

crime with advance knowledge that a confederate would use or carry a gun during the 

crime’s commission.” Id. “[A]dvance knowledge,” the Court stated, means “knowledge 

at a time the accomplice can do something with it -- most notably, opt to walk away.” Id.

at 1249-50. 

Here, even assuming that the trial court’s instructions violated Rosemond, when a 

petitioner claims he is incarcerated based on conduct that subsequently has been rendered 

non-criminal, we must consider whether the record supports his claim of innocence. See

United States v. Tyler, 732 F.3d 241, 247 (3d Cir. 2013). This was a planned execution. 

The evidence, as summarized by the sentencing court in denying Spataro’s criminal Rule 

29 motion for judgment of acquittal, indicates that, because the attempted murder was a 

planned execution, Spataro had advance knowledge that a gun would be used during the 

commission of the crime. The sentencing court explained:

[A] cooperating witness, Giovanni Floridia ..., implicated Spataro in 

the murder conspiracy, testifying about Spataro’s role in the plan to 

murder Campanella, as well as the unsuccessful attempt. Floridia’s 

testimony about Spataro’s participation in the murder conspiracy 

included references to meetings in which Spataro participated as 

well as incriminating actions by Spataro both before and after 

Campanella was shot on July 16, 2001. Had the government relied 

exclusively on Floridia’s testimony -- which was not incredible on 

its face -- to establish Spataro’s guilt beyond a reasonable doubt ... 

this evidence would have been enough to sustain Spataro’s 

convictions.... But there was more evidence beyond Floridia’s 

testimony that incriminated Spataro. For example, the government 

introduced telephone records that corroborated Floridia’s testimony 

about Spataro’s role in the murder conspiracy. These telephone 

records reflected that, in the period leading up to and immediately 

following the attempted murder, a significant number of telephone 

calls were placed between the cellular telephones of Spataro and 

Vincent DeMartino..., the person who actually shot Campanella. In 
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particular, Floridia testified that, as he and DeMartino were driving 

away from the location where DeMartino shot Campanella, 

DeMartino called Spataro and said, in part, “Hey, Mike. We 

missed.” The telephone records received into evidence indeed 

reflected that a call had, in fact, been placed from DeMartino’s 

telephone to Spataro’s telephone immediately after DeMartino shot 

Campanella. As far as the Court is concerned, no doubt exists that a 

rational trier of fact could conclude -- as this jury did -- that Spataro 

was guilty of all three charges.

United States v. Spataro, 2006 WL 2010788, *1-2 (E.D.N.Y. July 10, 2006).

In sum, § 2255 is inadequate or ineffective to test the legality of detention in a 

case where the gatekeeping provisions bar a successive petitioner who can successfully 

allege actual innocence of the crime of which he was convicted and who, at the time of 

his earlier § 2255 motion could not demonstrate that innocence. But, in Spataro’s case, 

denying him access to federal court under § 2241 is proper because he cannot allege facts 

to support his claim of actual innocence, and therefore the unavailability of relief under § 

2255 does not render that provision inadequate or ineffective as to him.

As to Spataro’s alternative argument, we agree with the District Court that the 

holdings in Rosemond and Pinkerton address two distinct and separate theories of 

vicarious liability, and that a conviction under a theory of vicarious liability pursuant to 

Pinkerton serves as an alternate basis for conviction. Because Pinkerton and Rosemond

address two separate theories of liability, there has been no intervening change in law and 

thus the “safety valve” to § 2255 does not apply to Spataro. He has failed to bring his 

Pinkerton claim within the Dorsainvil rule and thus the District Court lacked jurisdiction 

to consider it in a § 2241 petition.

For the foregoing reasons, we will summarily affirm the order of the District Court 

dismissing Spataro’s § 2241 petition for lack of jurisdiction.