NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

:

TEODORO OROZCO-CASTILLO, :

:

Petitioner, :

:

v. :

:

UNITED STATES OF AMERICA, :

et al., :

:

Respondents. :

 :

Hon. Noel L. Hillman

Civil No. 11-0141(NLH)

OPINION

APPEARANCES:

TEODORO OROZCO-CASTILLO, #16412-045

FCI Fort Dix

P.O. 2000

Fort Dix, NJ 08640 

Petitioner Pro Se

HILLMAN, District Judge

Teodoro Orozco-Castillo, a federal prisoner confined at FCI

Fort Dix, filed a Petition for a Writ of Habeas Corpus pursuant

to 28 U.S.C. § 2241 challenging his imprisonment pursuant to a

federal sentence imposed on May 12, 2004, by the United States

District Court for the Western District of Missouri. Having

thoroughly reviewed the Petition, as well as the docket in the

underlying criminal proceeding, this Court will summarily dismiss

the Petition for lack of jurisdiction. 

I. BACKGROUND

Petitioner challenges his incarceration pursuant to an

aggregate 240-month term of imprisonment imposed by judgment

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entered May 17, 2004, after a jury found him guilty of conspiring

to distribute 50 grams or more of methamphetamine and aiding and

abetting the possession of 50 grams or more of methamphetamine

with the intent to distribute. See United States v. OrozcoCastillo, Crim. No. 03-0344-FJG-2 judgment (W.D. Mo. May 14,

2004). Petitioner appealed, arguing that his sentence violated

the Sixth Amendment and United States v. Booker 543 U.S. 220

(2005). On April 22, 2005, the Eighth Circuit affirmed. See

United States v. Orozco-Castillo, 404 F. 3d 1101 (8th Cir. 2005). 

On April 14, 2006, Petitioner filed a motion pursuant to 28

U.S.C. § 2255 to vacate the sentence. See Orozco-Castillo v.

United States, Civ. No. 06-0324 (FJG) order (W.D. Mo. June 28,

2006). By order entered June 28, 2006, the sentencing court

denied relief. 

Petitioner, who is now confined at FCI Fort Dix in New

Jersey, executed a form § 2241 petition on January 4, 2011. 

Petitioner argues that 28 U.S.C. § 2255 is inadequate or

ineffective for his claim that he is actually innocent because

there was insufficient evidence to convict him. (Docket Entry

#1, pp. 10-19.)

II. DISCUSSION

A. Jurisdiction

Section 2241 of Title 28 of the United States Code provides

in relevant part:

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(c) The writ of habeas corpus shall not

extend to a prisoner unless– . . . He is in

custody in violation of the Constitution or

laws or treaties of the United States.

28 U.S.C. § 2241(c)(3). 

 Generally, a challenge to the validity of a federal

conviction or sentence must be brought under 28 U.S.C. § 2255. 

See Davis v. United States, 417 U.S. 333 (1974); Okereke v.

United States, 307 F.3d 117, 120 (3d Cir. 2002). This is because

28 U.S.C. § 2255 expressly prohibits a district court from

entertaining a challenge to a prisoner’s federal sentence under §

2241 unless the remedy under § 2255 is “inadequate or

ineffective.” See 28 U.S.C. § 2255(e). Specifically, § 1

2255(e) provides:

An application for a writ of habeas corpus

[pursuant to 28 U.S.C. § 2241] in behalf of a

prisoner who is authorized to apply for

relief by motion pursuant to this section,

shall not be entertained if it appears that

the applicant has failed to apply for relief,

by motion, to the court which sentenced him,

or that such court has denied him relief,

unless it also appears that the remedy by

motion is inadequate or ineffective to test

the legality of his detention.

28 U.S.C. § 2255(e); see Cradle v. U.S. ex rel. Miner, 290 F.3d

536 (3d Cir. 2002); In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.

 The “inadequate or ineffective” language was necessary 1

because the Supreme Court held that “the substitution of a

collateral remedy which is neither inadequate nor ineffective to

test the legality of a person’s detention does not constitute a

suspension of the writ of habeas corpus.” Swain v. Pressley, 430

U.S. 372, 381 (1977).

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1997); Millan-Diaz v. Parker, 444 F.2d 95 (3d Cir. 1971);

Application of Galante, 437 F.2d 1164 (3d Cir. 1971) (per

curiam); United States ex rel. Leguillou v. Davis, 212 F.2d 681,

684 (3d Cir. 1954). 

A § 2255 motion is inadequate or ineffective, authorizing

resort to § 2241, “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.” Cradle, 290 F. 3d at 538. “It is

the inefficacy of the remedy, not the personal inability to use

it, that is determinative.” Id. The provision exists to ensure

that petitioners have a fair opportunity to seek collateral

relief, not to enable them to evade the statute of limitations

under § 2255 or the successive petition bar. Id. at 539.

In In re Dorsainvil, 119 F.3d at 251, the United States

Court of Appeals for the Third Circuit applied the “inadequate or

ineffective” test to a § 2241 claim challenging a sentence on the

basis of a change of substantive law that occurred after

Dorsainvil’s first § 2255 motion was decided. The Court of 2

Appeals first determined that Dorsainvil could not raise the

 Dorsainvil claimed that he was actually innocent of “use 2

of a firearm” after the Supreme Court held in Bailey v. United

States, 516 U.S. 137 (1995), that the crime, “use of a firearm,”

does not reach certain conduct. The Supreme Court later ruled

that the court’s interpretation of the statute in Bailey applied

retroactively under § 2255 to convictions that were final. See 

Bousley v. United States, 523 U.S. 614 (1998).

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Bailey claim in a successive § 2255 motion because the AEDPA

restricted successive § 2255 motions to constitutional claims. 

While the Third Circuit found § 2255 inadequate and ineffective

under the narrow circumstances present in that case, the court

cautioned: 

We do not suggest that § 2255 would be

“inadequate or ineffective” so as to enable a

second petitioner to invoke § 2241 merely

because that petitioner is unable to meet the

stringent gatekeeping requirements of the

amended § 2255. Such a holding would

effectively eviscerate Congress’s intent in

amending § 2255. However, allowing someone

in Dorsainvil’s unusual position - that of a

prisoner who had no earlier opportunity to

challenge his conviction for a crime that an

intervening change in substantive law may

negate, even when the government concedes

that such a change should be applied

retroactively - is hardly likely to undermine

the gatekeeping provisions of § 2255.

Dorsainvil at 251 (emphasis added).3

Here, Petitioner’s claim - he is actually innocent because

there was insufficient evidence to convict him - is within the

scope of claims cognizable under § 2255, and thus he may not seek

relief under § 2241 unless the remedy under § 2255 is inadequate

or ineffective. Section 2255 is not inadequate or ineffective

for Petitioner’s claim, however, because he does not contend

 Several courts of appeals have adopted similar tests. See 3

Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir.

2001); In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000); Wofford

v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999); In re Davenport,

147 F.3d 605, 611 (7th Cir. 1998); Triestman v. United States,

124 F.3d 361 (2nd Cir. 1997).

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that, as a result of a Supreme Court decision issued subsequent

to his § 2255 motion, the conduct for which he was convicted

(conspiracy to distribute methamphetamine and aiding and abetting

possession with intent to distribute methamphetamine) is now noncriminal. See Dorsainvil, 119 F. 3d at 250 (“A Supreme Court

decision interpreting a criminal statute that resulted in the

imprisonment of one whose conduct was not prohibited by law

presents exceptional circumstances where the need for the remedy

afforded by the writ of habeas corpus is apparent”) (quoting

Davis v. United States, 417 U.S. 333, 346 (1974)); Massey v.

United States, 581 F. 3d 172 (3d Cir. 2009) (petitioner may not

challenge federal sentence on Booker grounds via a writ of audita

querela); Okereke v. United States, 307 F.3d 117 (3d Cir. 2002)

(“Unlike the intervening change in law in In re Dorsainvil that

potentially made the crime for which that petitioner was

convicted non-criminal, Apprendi dealt with sentencing and did

not render conspiracy to import heroin, the crime for which

Okereke was convicted, not criminal. Accordingly, under our In

re Dorsainvil decision, § 2255 was not inadequate or ineffective

for Okereke to raise his Apprendi argument”). Because § 2255 is

not an inadequate or ineffective remedy for Petitioner’s claim,

this Court lacks jurisdiction to entertain Petitioner’s claim

under § 2241 and will dismiss the Petition for lack of

jurisdiction. 

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III. CONCLUSION

The Court dismisses the Petition for lack of jurisdiction.

 /s/ NOEL L. HILLMAN 

NOEL L. HILLMAN, U.S.D.J.

Dated: JANUARY 13 , 2011

At Camden, New Jersey

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