GLD
- 237 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_________________ No. 11

- 2547

_________________ ASTOLFO TORRES,

Appellant

v. UNITED STATES OF AMERICA; DONNA ZICKEFOOSE, Warden at F ort Dix Prison

_________________ On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 10

- cv
- 4949 ) District Judge: Honorable Jerome B. Simandle

_________________ Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

July 14, 2011
Before: AMBRO, CHAGARES and COWEN , Circuit Judges

(Opinion filed : July 26, 2011 )

_________________ OPINION

_________________ PER CURIAM
Astolfo Torres, proceeding pro se, a ppeals the District Court’s dismissal of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons that follow, we will summarily affirm the judgment of the District Court.2

Torres is presently incarcerated at the Federal Corr ectional Institution at Fort Dix, New Jersey. He pleaded guilty in 2004 to various crimes relating to the distribution of
cocaine in t he Southern District of Florida and was sentenced to 108 months’
incarceration. His direct appeal to the Eleventh Circui t was dismissed as untimely , and
his subsequent motion to vacate, set aside, or correct s entence pursuant to 28 U.S.C. § 2255 , was denied on its merits

. In 2008 , Torres filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the Distr ict of New Jersey , where he is confined

. Th at petition , which attacked his conviction and sentence, was dismissed for lack of jurisdiction

. Torres v. Grondolsky , No. 1: 08

- cv
- 4811 (D.N.J. 2008). Torres did not appeal.
I n September 2010, Torres initiate d this case by filing another § 2241 petition. In
it h e a verred that he is actually innocent because , under the Supreme Court’s recent decision, Padilla v. Kentucky , 130 S. Ct. 1473 , 1486 (2010), his trial counsel was constitutionally ineffective for fail ing to inform him that a guilty plea carries a risk of deportation. T he District Court construed his petition as a second or successive § 2255 motion, and dismissed his petition for lack of jurisdiction

. See Application of Galante , 437 F.2d 1164, 1165 (3 d Cir. 1971). Torres appealed. 1

A motion pursuant to 28 U.S.C. § 2255 is the primary means to collaterally challenge a federal conviction or sentence. See In re Dorsainvil , 119 F.3d 245, 249 (3d

1 We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. Our review of the District Court's legal conclusions is plenary. See Rios v. Wiley , 201 F.3d 257, 262 (3d3

Cir. 1997). A federal prisoner can seek relief from an un constitutional sentence or
conviction under § 2241 if the remedy provided by § 2255 is inadequate or ineffective to test the legality of his detention. 28 U.S.C. § 2255; Cradle v. United States ex rel. Miner , 290 F.3d 536, 538 (3d Cir. 2002). We have hel d that § 2255 is inadequate or ineffective where an intervening change in substantive law has potentially made the conduct for which the petitioner was convicted non

- criminal. Dorsainvil , 1 19 F.3d at 248

. Even assuming, arguendo , that Padilla is retroact ively applicable on collateral review, that case does not represent a change in substantive law

. T he conduct for which Torres was
convicted rema ins criminal and his claim of “actual innocence” is otherwise
unsubstantiated

. His claims should therefore hav e been raised via a § 2255 motion in the
Southern District of Florida , his court of conviction , and not in the District of New Jersey

. 2 See Galante , 437 F.2d at 1165; 28 U.S.C. § 2255. Accordingly, the District
Court lacked jurisdiction over Torres’ peti tion , and correctly dismissed the action

. Accordingly, w e conclude that Torres’ appeal presents no substantial question , and will summarily affirm the judgment of the District Court. See 3d Cir. LAR 27.4 & I.O.P.
10.6. The petition for a certificate o f appealability is denied as unnecessary.

Cir. 2000). 2 Of course, because Torres h as already brought a § 2255 action, he cannot now file another without leave from the Eleventh Circuit. 28 U.S.C. § 2255 (h). We concur with the District Court that construing Torres’ petition as one for leave to file a second or successive § 2255 motion a nd transferring it to that Court would not be in the interest of justice. 28 U.S.C. § 1631.