Opinion
Civil Action No. 98-5552 (JBS)
January 28, 1999
Adam Rebolledo, Reg. No. 09299-023, Fort Dix, New Jersey, Petitioner Pro Se.
Faith S. Hochberg, United States Attorney, By: Irene E. Dowdy, Assistant U.S. Attorney, Trenton, New Jersey, for Respondent.
MEMORANDUM OPINION
This matter is before the court on petitioner Adam Rebolledo's petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2241. The court finds that it lacks subject matter jurisdiction because Rebolledo seeks relief that is available only from the sentencing court under 28 U.S.C. § 2255. Accordingly, the court transfers Rebolledo's petition to the U.S. District Court for the District of Idaho for consideration under § 2255.
BACKGROUND
The following facts are developed from the petition and from respondent's answer thereto. Rebolledo is presently in custody at F.C.I. Fort Dix, serving a 135 month sentence imposed by the U.S. District Court for the District of Idaho on June 20, 1997 after he plead guilty to conspiracy to distribute or possess with intent to distribute controlled substances, in violation of 21 U.S.C. § 846, use and/or possession of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c), and being an alien in possession of a firearm, in violation of 18 U.S.C. § 922 (g)(5). Rebolledo did not appeal his sentence, although he claims in his petition that his attorney was supposed to have done so on his behalf.
Rebolledo filed his petition for habeas corpus under § 2241 on December 9, 1998. In his petition, Rebolledo claims that he was denied his Sixth Amendment right to effective assistance of counsel at all stages of his criminal prosecution, and that the sentence imposed violates several provisions of the United States Sentencing Guidelines.
Rebolledo acknowledges in his petition that he did not file a motion under § 2255 to vacate, set aside or correct his sentence in the U.S. District Court for the District of Idaho within one year from the date on which his judgment of conviction became final, as required under § 2255, but claims that he was prevented from doing so as a result of his attorney's failure to provide Rebolledo with his file in a timely manner and to timely advise Rebolledo of the decision not to file a notice of appeal, as well as the court reporter's delay in producing certain transcripts Rebolledo believes he needed in order to file such a motion. In response to a letter Rebolledo had written regarding his efforts to obtain his file from his attorney and to obtain transcripts from the court reporter, the sentencing court had entered an Order dated April 9, 1998 (filed April 10, 1998) directing the clerk to docket Rebolledo's letter and send Rebolledo copies of his plea agreement, the minutes of his change of plea hearing, the minutes of his sentencing hearing and judgment of conviction, and directing further directing Rebolledo's attorney to respond to Rebolledo's letter within 14 days. Rebolledo claims that he ultimately received his file from his attorney in June 1998 and received the transcripts from the court reporter on September 29, 1998.
DISCUSSION
The court must first decide the threshold issue whether Rebolledo's claim for relief is cognizable under § 2241, or only under § 2255.
"Ever since 1948, when Congress enacted § 2255 to allow for collateral review of the sentences of federal prisoners in the trial court, that section, rather than § 2241, has been the usual avenue for federal prisoners seeking to challenge the legality of their confinement." In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997); see also United States v. Walker, 980 F. Supp. 144, 145-46 (E.D.Pa. 1997) (challenges to a sentence as imposed should be brought under § 2255, while challenges to the manner in which a sentence is being executed should be brought under § 2241). Section 2255 provides, in pertinent part:
An application for a writ of habeas corpus [under § 2241] in behalf of a prisoner authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant 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 the detention.28 U.S.C. § 2255.
Congress amended § 2255 as part of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (the "AEDPA"). As of the AEDPA's effective date of April 24, 1996, a motion to vacate, correct or set aside a sentence under § 2255 must be filed in the sentencing court within one year of the latest of (1) the date on which the judgment of conviction became final; (2) the date of the removal of any impediment to making such a motion that was created by unlawful government action; (3) the date on which a right asserted by a movant was first recognized by the Supreme Court and made retroactive to cases pending on collateral review; or (4) the date on which the movant could have discovered the facts supporting the claim[s] presented through the exercise of due diligence. Id. Furthermore, once a prisoner has filed one § 2255 motion, he may not file another unless he first obtains a certification from a panel of the appropriate court of appeals permitting him to do so on the grounds of (1) newly discovered evidence that would clearly and convincingly negate the possibility that a reasonable factfinder would have found the movant guilty of the offense charged, or (2) a previously unavailable and retroactively applicable new rule of constitutional law. Id.
The Third Circuit recognized in Dorsainvil that there may be some rare situations in which a prisoner who cannot satisfy the gatekeeping requirements of § 2255 should be permitted to proceed under § 2241, but emphasized that a prisoner's inability or failure to comply with those gatekeeping requirements generally does not render § 2255 "inadequate or ineffective" so as to permit resort to § 2241, noting that such a holding "would effectively eviscerate Congress's intent in amending § 2255." Dorsainvil, 119 F.3d at 251.
In the present case, although styled as a petition for writ of habeas corpus under § 2241, Rebolledo's petition is, in substance, a motion to vacate, set aside or correct his sentence under § 2255 because it challenges his 1997 conviction and sentence as imposed by the U.S. District Court for the District of Idaho. Generally, such a motion must be brought before the sentencing court within one year after the date on which the judgment of conviction becomes final. 28 U.S.C. § 2255. Rebolledo acknowledges that he did not file a motion under § 2255 in the U.S. District Court for the District of Idaho within one year of the date on which his conviction became final, but claims that he should be permitted to proceed under § 2241 because circumstances beyond his control prevented him from filing such a motion in the sentencing court within the one-year period.
This court does not agree that Rebolledo should be permitted to proceed under § 2241 under Dorsainvil, especially since he has not even attempted to pursue relief under § 2255 in the sentencing court. An extension of the one-year period of limitation under § 2255 may be justified in this case due to the circumstances Rebolledo describes in his petition, but that is for the sentencing court to decide. This court lacks subject matter jurisdiction over Rebolledo's petition because it seeks relief that is available only from the sentencing court under § 2255. Accordingly, this court transfers Rebolledo's petition to the U.S. District Court for the District of Idaho for consideration under § 2255. The accompanying Order is entered.
ORDER
THIS MATTER having come before the court on petitioner Adam Rebolledo's petition for writ of habeas corpus under 28 U.S.C. § 2241, and the court having determined that, in substance, the petition is actually a motion under 28 U.S.C. § 2255 to vacate, set aside or correct the sentence imposed by the U.S. District Court for the District of Idaho on June 20, 1997, and the court further having determined, for the reasons set forth in the accompanying Memorandum Opinion, that it lacks subject matter jurisdiction over the petition, and the court having made no determination of the timeliness of the motion under § 2255, which issue is reserved for the sentencing court because a colorable argument for timeliness exists;
IT IS on this day of January, 1999, hereby ORDERED that this matter be TRANSFERRED to the U.S. District Court for the District of Idaho for consideration by the sentencing court under 28 U.S.C. § 2255.