Opinion
Civil No. 1:CV-05-0160.
May 17, 2005
MEMORANDUM AND ORDER
Before the court is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Petitioner was found guilty by a jury and sentenced as career offender. He appealed to the Third Circuit Court of Appeals which affirmed the judgment of conviction. Certiorari was denied on October 2, 2002. Subsequently, Petitioner filed a motion pursuant to 28 U.S.C. § 2255 which was denied by this court, the court of appeals and the Supreme Court. The instant motion pursuant to § 2241 contests the use of a state conviction on January 7, 1993 as one of the convictions used to place Petitioner in the career offender status.
A § 2255 motion is the presumptive means by which a federal prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343 (1974). A federal prisoner may proceed under § 2241 only if the remedy provided by § 2255 is inadequate or ineffective to test the legality of his detention. See 28 U.S.C. § 2255; In re Dornsailvil, 119 F.3d 245, 249-51 (3d Cir. 1997). "A § 2255 motion is inadequate or ineffective 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 claims." Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). Section 2255 is not inadequate or ineffective merely because the petitioner is unable to meet certain procedural requirements, such as the one-year period of limitation. Id. at 539.
Petitioner has failed to meet the one-year period of limitations. He did not contest the validity of his 1993 conviction until 1999 and then not until after his federal conviction. Furthermore, the instant petition is a successive petition. A second or successive petition can only be filed if the appropriate court of appeals permits the filing of a second petition. No such permission has been obtained.
Petitioner believes he is entitled to relief under the savings clause of § 2255, i.e. the inadequate or ineffective language. The safety valve provision "is reserved for rare cases." Dornsaivil, 199 F.3d at 250. Petitioner is not being punished for an act that the law does not make criminal. Id. Thus, he is not entitled to § 2241 relief.
Petitioner alleges that his plea to the state charge was not knowingly and intelligently entered. A review of the record does not substantiate his view. In any event, assuming this 1993 conviction were set aside, Petitioner's record would still support a career offender designation.
Petitioner argues that because the government's Information Charging Prior Convictions only cited to the 1993 controlled substance conviction, it could not rely on any other past convictions to sustain a criminal career category. In United States v. Day, 969 F.2d 39 (3d Cir. 1992), the court held that 21 U.S.C. § 851(a)(1) requires that the government need not file a pretrial information concerning prior convictions unless it intends to seek a sentence beyond the maximum provided by the statute. It is not required if a defendant is sentenced as a career offender under USSG § 4B1.1. ( See also United States v. Diehl, 65 Fed. App. 839 (3d Cir. 2003). Defendant was found to be a career criminal pursuant to USSG § 4B1.1.
(Presentence Report at p. 4, ¶ 28, November 20, 1998.) Thus, in addition to bringing this action by an improper procedure, the issues raised in the motion have no merit.
IT IS THEREFORE ORDERED THAT:
1) The petition brought pursuant to 28 U.S.C. § 2241 is DENIED.
2) The Clerk of Court shall close the file.
3) This court declines to issue a certificate of appealability.