GLD-237 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 11-2547

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ASTOLFO TORRES,

 Appellant

v.

UNITED STATES OF AMERICA; 

DONNA ZICKEFOOSE, Warden at Fort Dix Prison

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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

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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)

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OPINION

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PER CURIAM

Astolfo Torres, proceeding pro se, appeals 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 Correctional Institution at Fort Dix, 

New Jersey. He pleaded guilty in 2004 to various crimes relating to the distribution of 

cocaine in the Southern District of Florida and was sentenced to 108 months’ 

incarceration. His direct appeal to the Eleventh Circuit was dismissed as untimely, and 

his subsequent motion to vacate, set aside, or correct sentence 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 District of New Jersey, where he is confined. 

That 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. 

In September 2010, Torres initiated this case by filing another § 2241 petition. In 

it he averred 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 failing to inform him that a guilty plea carries a risk of 

deportation. The 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 (3d 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 (3d 
3

Cir. 1997). A federal prisoner can seek relief from an unconstitutional 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 held 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, 119 F.3d at 248. Even 

assuming, arguendo, that Padilla is retroactively applicable on collateral review, that case 

does not represent a change in substantive law. The conduct for which Torres was 

convicted remains criminal and his claim of “actual innocence” is otherwise

unsubstantiated. His claims should therefore have 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’ petition, and correctly dismissed the action. 

Accordingly, we 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 of appealability is denied as unnecessary. 

 

Cir. 2000).

2 Of course, because Torres has 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 and transferring it to that Court would not be in 

the interest of justice. 28 U.S.C. § 1631.