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- 262 NOT PRECEDENTIAL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 Unite d 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, 2 011 )

_________
OPINION

_________
PER CURIAM

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

United Sta tes 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 20 11, 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 f or 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 U nited 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 fe deral 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. United3

States , 290 F.3d 536, 538

- 39 (3d Cir. 2002) (per curiam). Rather, a § 2255 motion is

inadequate or ineffective “o nly 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. De larosa 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

- rela ted 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

affir m the judgment of the District Court.

1 We 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 t he 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.