Opinion
Civil No. 4:05-CV-2294.
December 28, 2005
REPORT AND RECOMMENDATION
On November 3, 2005, the petitioner, a federal prisoner proceeding pro se, filed a petition for a writ of habeas corpus and a memorandum of law in support of that petition. The petitioner is currently incarcerated at the United States Penitentiary — Allenwood in White Deer, Pennsylvania. The petitioner is challenging a conviction and sentence he received from the United States District Court for the Eastern District of Virginia. The petitioner claims that the trial court lacked jurisdiction to convict him and that, therefore, his conviction and sentence are null and void.
By an Order dated November 4, 2005, the respondent was ordered to show cause on or before November 25, 2005, why the petitioner should not be granted habeas corpus relief. The Order of November 4, 2005 also provided that the petitioner may file a reply to the response within ten days of the filing of the response.
On November 22, 2005, the respondent filed a response to the petition and on November 30, 2005, the petitioner filed a reply to the respondent's response.
The respondent contends that the petition should be dismissed because the petitioner can not challenge his federal conviction and sentence by way of a 28 U.S.C. § 2241 habeas petition.
28 U.S.C. § 2255 provides:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
. . . .
An application for a writ of habeas corpus on 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.
The claim that the petitioner is raising is a type of claim that should be brought by way of a § 2255 motion in the district court of conviction.
To be able to bring a petition for a writ of habeas corpus, the petitioner must establish that he satisfies the safety-valve language of § 2255, i.e. that the remedy by a § 2255 motion is inadequate or ineffective to test the legality of his detention. The safety-valve language in § 2255 has been strictly construed. See Application of Galante, 437 F.2d 1164, 1165-66 (3d Cir. 1971) (unfavorable legal standards prevailing in circuit where sentencing court located does not render § 2255 remedy inadequate or ineffective); Millan-Diaz v. Parker, 444 F.2d 95, 97 (3d Cir. 1971) (doubts about the administration of a § 2255 motion in a particular case do not make the remedy inadequate or ineffective); United States ex rel. Leguillou v. Davis, 212 F.2d 681, 684 (3d Cir. 1954) (even if the sentencing court incorrectly disposes of a proper motion under § 2255 the proper remedy would be by appeal of that decision and not a habeas corpus petition). A motion under § 2255 is inadequate or ineffective only where it is established "`that some limitation of scope or procedure would prevent a Section 2255 proceeding from affording the prisoner a full hearing and adjudication of his claim of wrongful detention.'" Galante, supra, 437 F.2d at 1165 (quoting Leguillou, supra, 212 F.2d at 684).
28 U.S.C. § 2255 establishes a one-year statute of limitations applicable to § 2255 motions. Also, before a second or successive § 2255 motion may be considered by the district court, it must be certified by a three judge panel of the court of appeals to contain:
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.28 U.S.C. § 2255.
"Section 2255 is not inadequate or ineffective merely because the sentencing court does not grant relief, the one-year statute of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255." Cradle v. United States, 290 F.3d 536, 539 (3d Cir. 2002). "It is the inefficacy of the remedy, not the personal inability to utilize it, that is determinative" Id. at 538.
In In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997), the Third Circuit addressed the issue of when a prisoner may bring a § 2241 habeas petition after being denied leave to file a successive § 2255 motion. Dorsainvil involved a prisoner who sought to bring a successive § 2255 motion on the basis of the United States Supreme Court's decision in Bailey v. United States, 516 U.S. 137 (1995). In Bailey the Court held that a defendant may not be convicted of using a firearm under 18 U.S.C. § 924(c) unless the government proves that the defendant "actively employed the firearm during and in relation to the predicate crime." 516 U.S. at 150. After the Bailey decision the petitioner in Dorsainvil filed an application to file a successive § 2255 motion claiming that on the basis of Bailey he was imprisoned for conduct that the Supreme Court had determined is not illegal. The Third Circuit held that a prisoner who was convicted and filed his first § 2255 motion before the Bailey decision may not file a second § 2255 motion based on Bailey because the second motion does not meet the stringent requirements created by the Antiterrorism and Effective Death Penalty Act for filing a second § 2255 motion. 119 F.3d at 248. The Third Circuit went on to indicate that although a prisoner may not file a second § 2255 motion based on Bailey he may file a 28 U.S.C. § 2241 habeas corpus petition. Id. at 251. However, the Third Circuit cautioned that:
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 § 2255.119 F.3d at 251.
The Third Circuit held that the petitioner in Dorsainvil may bring a § 2241 petition because to hold otherwise might result in the imprisonment of a person who had not committed a crime. Id.
In the instant case, the petitioner is not in a position similar to the petitioner in Dorsainvil. The petitioner has not established that his remedy by way of a 28 U.S.C. § 2255 motion is inadequate or ineffective to test the legality of his detention. The petitioner could have brought his claim that the trial court lacked jurisdiction in connection with a direct appeal of his conviction or in connection with his first 28 U.S.C. § 2255 motion. The fact that the petitioner may now be barred from filing a successive § 2255 motion either based on the statute of limitations or based on the restrictions on filing second or successive § 2255 motions does not indicate that his remedy by way of a § 2255 motion was inadequate or ineffective to test the legality of his detention. Accordingly, pursuant to 28 U.S.C. § 2255, the petitioner may not bring his claim challenging his conviction and sentence as a habeas corpus petition.
The petitioner argues that he did not bring his habeas petition pursuant to 28 U.S.C. § 2241 but rather he brought his petition pursuant to Article I, Section 9, Clause 2 of the United States Constitution and the First Amendment of the United States Constitution. The jurisdiction of the lower federal courts to issue the writ of habeas corpus is based on statute. The First Amendment does not provide this court with jurisdiction to issue the writ of habeas corpus. Nor does Article I, Section 9, Clause 2 of the Constitution, known as the Suspension Clause, provide this court with jurisdiction to issue the writ. The Suspension Clause provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The Suspension Clause is a prohibition against suspending the writ except in certain limited circumstances, not a positive grant of jurisdiction to issue the writ.
We note that the petitioner had previously filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging his conviction — Russell v. Pugh, 4:03-CV-1602 (M.D.Pa.). By an Order dated December 11, 2003, Judge Muir dismissed that petition. The United States Court of Appeals for the Third Circuit subsequently affirmed the dismissal of that petition.
The petitioner also argues that, if the court construes § 2255 as barring his application for a writ of habeas corpus, § 2255 constitutes a suspension of the writ in violation of the Suspension Clause. This argument is without merit.
"It is, of course, well established that requiring a federal prisoner to pursue post-conviction relief in the trial court under § 2255, rather than in a habeas proceeding under § 2241, where that remedy is adequate and effective does not constitute a suspension of the writ." United States v. Brooks, 245 F.3d 291, 292 n. 2 (3d Cir. 2001) (citing United States v. Anselmi, 207 F.2d 312, 314 (3d Cir. 1953)). Neither do the gatekeeping provisions limiting § 2255 motions violate the Suspension Clause. See generally Felker v. Turpin, 518 U.S. 651, 664 (1996) (holding that the statutory restrictions placed on filing second habeas petitions by state prisoners [which are similar to the limits on filing second or successive § 2255 motions] do not amount to a suspension of the writ contrary to Article 1, § 9). See also Benefiel v. Davis, 403 F.3d 825, 827 (7th Cir. 2005) ("What is protected from suspension is the writ that limits a persons's detention by the executive branch without trial. There is no constitutional entitlement to post-judgment collateral review by the inferior federal courts, let alone to unending rounds of such review.").
Based on the foregoing, it is recommended that the petition (doc. 1) for a writ of habeas corpus be dismissed and that the case file be closed.