Opinion
02-CV-2040 (RR)
May 8, 2002
MEMORANDUM AND ORDER
Petitioner Calvin Bacote, proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Bacote is presently incarcerated, serving a 188-month term of incarceration as a result of his 1991 guilty plea to conspiring to distribute crack cocaine. The court had originally sentenced Bacote to a term of 262 months but, with the consent of the prosecution, modified that sentence in response to a § 2255 petition. See Bacote v. United States, No. 92-CV-4203 (E.D.N.Y. Jan. 4, 1993) (reducing sentence in light of state court reversal of a prior conviction that had enhanced petitioner's criminal history category). In now moving for § 2241 relief, Bacote submits that at the time of his guilty plea, the court overestimated his minimum and maximum sentence, advising him that he faced a term of ten years to life, when in fact his statutory sentencing range was only five to forty years. He further faults his attorney for failing to note this error at sentencing.
The United States District Court for the Northern District of New York received the instant petition on August 2, 2001 and transferred it to this Court by order dated March 5, 2002.
The merits of Bacote's claim appear dubious. He does not submit a copy of the plea minutes with his petition. The court has, however, reviewed the Probation Department's Presentence Report. Therein it is made plain that Bacote was allowed to plead to a lesser charge carrying a five to forty year sentence. More importantly, the guideline range of 188-235 months would have applied regardless of whether his statutory sentencing range under 21 U.S.C. § 841 was ten to life, five to forty, or zero to twenty.
In fact, however, it may not be appropriate for this court to address the merits of Bacote's claims since relief under 28 U.S.C. § 2241 is not available to him, and any attempt to raise these challenges in a second petition for § 2255 relief requires the permission of the United States Court of Appeals for the Second Circuit.
A petition pursuant to 28 U.S.C. § 2241 "generally challenges the execution of a federal prisoner's sentence including such matters as the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions." Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001) (citing Chambers v. United States, 106 F.3d 472, 474-75 (2d Cir. 1997) (articulating instances where a federal prisoner may properly file a § 2241 petition)). "In contrast, § 2255 is generally the proper vehicle for a federal prisoner's challenge to his conviction and sentence. . . ." Jiminian v. Nash, 245 F.3d at 146-47. The general rule is that "a federal prisoner must use § 2255 instead of seeking a writ of habeas corpus under § 2241" unless § 2255 provides an "`inadequate or ineffective [remedy] to test the legality of [a federal prisoner's] detention.'" Triestman v. United States, 124 F.3d 361, 373-74 (2d Cir. 1997) (quoting 28 U.S.C. § 2255).
That is plainly not Bacote's case. Both his sentencing claim and his complaint about counsel could have been raised in his first § 2255 petition. The fact that AEDPA does not permit successive § 2255 challenges without the approval of the Court of Appeals does not mean that the claims must be heard under § 2241. See Jiminian v. Nash, 245 F.3d at 147-48 (holding that a prisoner's inability to meet the gate-keeping requirements of AEDPA does not warrant a § 2241 filing where the claim the prisoner seeks to raise was previously available for review on direct appeal or in a prior § 2255 motion); Triestman v. United States, 124 F.3d at 376 (noting that if "habeas corpus is preserved whenever a federal prisoner faces a substantive or procedural barrier to § 2255 relief," Congress's attempts to "to place limits on federal collateral review" would be undermined).
Should Bacote wish to file a second § 2255 petition he must seek permission from the United States Court of Appeals for the Second Circuit. Of course, if the Circuit authorizes a second petition, this court will address its merits.
The petition for relief pursuant to § 2241, however, is hereby dismissed, and the Clerk is directed to mark this case closed.