CLD-262 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-2740

___________

DAVID DELAROSA,

Appellant

v.

H.L. HUFFORD, WARDEN

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(M.D. Pa. Civil No. 4-11-cv-00996)

District Judge: Honorable Malcolm Muir 

____________________________________

Submitted for Possible Summary Action Pursuant to 

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

August 11, 2011

Before: RENDELL, FUENTES and SMITH, Circuit Judges

(Opinion filed: August 30, 2011) 

_________

OPINION

_________

PER CURIAM

David Delarosa, a federal prisoner proceeding pro se, appeals an order of the 

United States District Court for the Middle District of Pennsylvania dismissing his 

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons that 

follow, we will affirm the judgment of the District Court.
2

In 2005, Delarosa pleaded guilty in the United States District Court for the 

Southern District of New York to conspiracy to distribute and possession with intent to 

distribute one kilogram of heroin. He was sentenced to 188 months in prison. Delarosa 

did not file a direct appeal.

In 2011, Delarosa filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. 

§ 2241 in the United States District Court for the Middle District of Pennsylvania 

claiming that he is confined in violation of his due process rights. Delarosa asserted that 

the Department of Justice had declared that he does not have a criminal record. He relied 

on a letter from the Federal Bureau of Investigation, which provides that the Criminal 

Justice Information Services Division had completed a fingerprint submission for him 

with the result “NO ARREST RECORD – FBI.” Habeas petition, Ex. A. 

The District Court dismissed the habeas petition without prejudice to any right 

Delarosa may have to file a petition for a writ of habeas corpus challenging his 

conviction in the United States District Court for the Southern District of New York 

pursuant to 28 U.S.C. § 2255. This appeal followed.

As recognized by the District Court, “[m]otions pursuant to 28 U.S.C. § 2255 are 

the presumptive means by which federal prisoners can challenge their convictions or 

sentences[.]” Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). Although a 

petitioner may challenge a conviction pursuant to § 2241 where a § 2255 motion would 

be “inadequate or ineffective,” a § 2255 motion is not inadequate or ineffective because 

the petitioner is unable to meet § 2255’s gatekeeping requirements. Cradle v. United 
3

States, 290 F.3d 536, 538-39 (3d Cir. 2002) (per curiam). Rather, a § 2255 motion 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.” Id. at 538. 

Delarosa has not made such a showing. Delarosa contends that he is not 

challenging his conviction because, according to the letter he received, he has no 

conviction. Delarosa, however, does not dispute that he is currently confined as a result 

of a 2005 conviction in federal court for drug-related offenses. His habeas petition seeks 

to call into question the existence and/or validity of that conviction. As such, Delarosa 

must seek relief pursuant to § 2255.1

Accordingly, because this appeal does not raise a substantial question, we will 

affirm the judgment of the District Court. 

 

1We found a § 2255 motion inadequate or ineffective in In re Dorsainvil, 119 F.3d 245 

(3d Cir. 1997), and allowed a petitioner to raise in a § 2241 habeas petition a claim under Bailey 

v. United States, 516 U.S. 137 (1995), because the petitioner had no earlier opportunity to 

challenge his conviction for a crime that Bailey may have negated. This case does not present 

such a situation.