The opinion of the court was delivered by: VAN ANTWERPEN
The government responds that Defendant's petition should be denied because it is in substance another motion under 28 U.S.C. § 2255 (a " § 2255 motion"), and therefore may not be used to raise objections not advanced in the original § 2255 motion. Alternatively, the government argues that James should not apply because it was decided after Defendant was sentenced and does not merit retroactive application.
On June 8, 1995, Defendant pleaded guilty to two counts of possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), and one count of using and carrying a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c). On December 1, 1995, this court sentenced Defendant to a 181 month term of imprisonment. On June 5, 1996, Defendant filed a § 2255 motion, seeking to have his sentence reduced. This court subsequently granted Defendant's motion and reduced the sentence by 60 months, resulting in a 121 month term of imprisonment. On January 6, 1997, Defendant filed a second § 2255 motion in this court. In accordance with the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L.No.104-132, we struck the motion and directed that the matter be transferred to the Third Circuit Court of Appeals, which would determine whether to allow a second § 2255 motion. Defendant filed his request with the Third Circuit on February 3, 1997, and the Third Circuit denied his motion on February 26, 1997. On September 8, 1997, Defendant filed the instant § 2241 petition in this court. The government's response was filed on October 1, 1997.
A. Nature of the Petition
Defendant cites 28 U.S.C. § 2241(c)(3) as the basis for the instant petition. The government responds that Defendant's petition should be treated as another § 2255 motion, and therefore denied, since the Third Circuit refused Defendant permission to file a § 2255 motion on this very issue.
The Supreme Court has noted that while § 2255 serves a gatekeeping function, it has not replaced the traditional writ of habeas corpus available under § 2241: "In a case where the Section 2255 procedure is shown to be 'inadequate or ineffective,' the Section provides that the habeas corpus remedy shall remain open to afford the necessary hearing." United States v. Hayman, 342 U.S. 205, 223, 96 L. Ed. 232, 72 S. Ct. 263 (1952) (internal citations omitted). The Third Circuit has identified the distinctly different scenarios in which §§ 2255 and 2241 are to be applied.
Furthermore, the United States Courts of Appeals have consistently held that a challenge to a sentence as executed by the prison and parole authorities may be made by petition for a writ of habeas corpus, whereas a challenge to the sentence as imposed must be made under 28 U.S.C. § 2255.
Gomori v. Arnold, 533 F.2d 871, 875 (3d Cir.), cert. denied 429 U.S. 851, 50 L. Ed. 2d 125, 97 S. Ct. 140 (1976) (emphasis supplied). In the present case, Defendant challenges the validity of his sentence as imposed, not the manner in which it is being executed. Therefore, the appropriate statutory ...