§ 924(c)(1), which imposes punishment upon a person convicted of
a drug trafficking crime who uses or carries a firearm. Id. The
Supreme Court held that a defendant could not be convicted of
using a firearm unless the government proved that the defendant
actively employed the firearm during and in relation to the
predicate crime. Id.
On June 19, 1996, Petitioner filed his second § 2255 motion in
the United States District Court for the Eastern District of
Virginia challenging his conviction and sentence in light of the
Bailey decision. Petitioner argued that, based on the record
from his original trial, the government's evidence was
insufficient to satisfy the elements of a section 924(c) offense
as those elements were more narrowly redefined under Bailey.
Before filing his second 2255 motion with the district court,
Petitioner failed to comply with the gatekeeping provision of the
AEDPA*fn1. On July 5, 1996, Petitioner filed a motion in the
United States Court of Appeals for the Fourth Circuit pursuant to
the gatekeeping provisions of AEDPA seeking leave to file his
second 2255 motion in the district court.
On July 24, 1996, the district court dismissed Petitioner's
2255 motion until the Fourth Circuit authorized the filing of a
second petition. On August 1, 1996, the United States Court of
Appeals for the Fourth Circuit denied Petitioner's motion to file
a successive 2255 petition in the district court.
On October 2, 1996, the district court denied Petitioner's
motion for reconsideration, and on October 15, 1996, Petitioner
filed a notice of appeal appealing that order. On September 19,
1997, the Fourth Circuit affirmed the district court decision of
October 2, 1996.
On January 16, 1998, the instant petition for writ of habeas
corpus was filed pursuant to 28 U.S.C. § 2241.
B. Claims Cognizable in Federal Habeas Corpus Proceedings
A prisoner may seek federal habeas relief only if he is in
custody in violation of the Constitution or federal law.
28 U.S.C. § 2254(a); Smith v. Phillips, 455 U.S. 209, 102 S.Ct.
940, 71 L.Ed.2d 78 (1982); Geschwendt v. Ryan, 967 F.2d 877 (3d
Cir.), cert. denied, 506 U.S. 977, 113 S.Ct. 472, 121 L.Ed.2d
379 (1992); Zettlemoyer v. Fulcomer, 923 F.2d 284 (3d Cir.),
cert. denied, 502 U.S. 902, 112 S.Ct. 280, 116 L.Ed.2d 232
(1991). Violations of state law or procedural rules alone are not
sufficient; a petitioner must allege a deprivation of federal
rights before habeas relief may be granted. Engle v. Isaac,
456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wells v.
Petsock, 941 F.2d 253 (3d Cir. 1991), cert. denied,
505 U.S. 1223, 112 S.Ct. 3038, 120 L.Ed.2d 906 (1992). The purpose of a
writ of habeas corpus is to challenge the legal authority under
which a prisoner is held in custody. Heck v. Humphrey,
512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); Allen v. McCurry,
449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (the unique
purpose of habeas corpus is to release the applicant for the writ
from unlawful confinement); Wolff v. McDonnell, 418 U.S. 539,
94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (basic purpose of the writ
is to enable those unlawfully incarcerated to obtain their
freedom); Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36
L.Ed.2d 439 (1973); United States v. Hollis,
569 F.2d 199, 205 (3d Cir. 1977). The writ supplies the mechanism
by which prisoners may challenge the length of their custodial
term. Fields v. Keohane, 954 F.2d 945, 949 (3d Cir. 1992);
Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990). The remedy is
to free an inmate from unlawful custody.
A writ of habeas corpus is the proper vehicle through which a
prisoner may challenge not only his sentence, but also the length
of his confinement. Tedford v. Hepting, 990 F.2d 745, 748 (3d
Cir. 1993), citing Preiser, 411 U.S. at 489-490, 93 S.Ct. 1827.
Habeas corpus is the exclusive remedy for a prisoner who
challenges the fact or duration of his confinement and seeks as
his relief immediate or speedier release from confinement.
Heck, 512 U.S. at 480, 114 S.Ct. 2364, explaining Preiser,
411 U.S. at 490, 93 S.Ct. 1827. A violation of a prisoner's
liberty interest may be addressed by a writ of habeas corpus only
to the extent that the alleged violation impacts a prisoner's
length of confinement. Wolff, 418 U.S. at 539, 94 S.Ct. 2963;
Cardenas v. Wigen, 921 F. Supp. 286 (E.D.Pa. 1996). If the
prisoner is seeking what can fairly be described as a quantum
change in the level of custody (whether outright freedom or
freedom subject to the limited reporting and financial
constraints of bond, parole or probation), then habeas corpus is
As a general proposition "only matters concerning the
conditions of confinement or the execution of a sentence are
within the subject matter jurisdiction of the court presiding in
the district in which a prisoner is incarcerated." DeSimone v.
Lacy, 805 F.2d 321, 323 (8th Cir. 1986), citing Lee v. United
States, 501 F.2d 494, 500 (8th Cir. 1974). Challenges to the
validity of a federal prisoner's conviction or sentence should be
presented to the sentencing court. Miller v. United States,
564 F.2d 103, 105 (1st Cir. 1977), cert. denied, 435 U.S. 931, 98
S.Ct. 1504, 55 L.Ed.2d 528 (1978).
Because Petitioner is challenging his conviction and the
imposition of his sentence, rather than the execution of his
sentence, a habeas corpus petition filed under § 2241 is not the
appropriate vehicle. When a petitioner attempts to seek relief
from the imposition of sentence under 28 U.S.C. § 2241, the
habeas petition is usually dismissed for lack of subject matter
jurisdiction. In the case at hand, however, Petitioner does not
challenge the condition of his confinement or the execution of
his sentence. Rather, he challenges his actual conviction and
sentence under 18 U.S.C. § 924(c). Petitioner was tried and
convicted in the United States District Court for the Eastern
District of Virginia. His conviction was affirmed by the United
States Court of Appeals for the Fourth Circuit. Thus, under §
2241 jurisprudence, the issues raised in the instant petition
would not usually be within the jurisdiction of this Court. See
Lee v. United States, 501 F.2d 494, 500 (8th Cir. 1974); Miller
v. United States, 564 F.2d 103, 105 (1st Cir. 1977), cert.
denied, 435 U.S. 931, 98 S.Ct. 1504, 55 L.Ed.2d 528 (1978)
(challenge to the validity of a federal prisoner's conviction or
sentence should be presented to the sentencing court).
This petition represents a collateral attack upon the legality
of the judgment of conviction and sentence imposed by District
Judge Williams in the Eastern District of Virginia. Such an
attack is more properly reserved for a petition filed pursuant to
28 U.S.C. § 2255 (In re Vial, 115 F.3d 1192 (4th Cir. 1997)),
instead of a petition filed pursuant to § 2241 in the circuit of
incarceration. Although Petitioner was tried and convicted in the
Fourth Circuit, he is currently incarcerated within the Third
Circuit. The Third Circuit has taken a broader view of the relief
available under the Bailey decision.
In In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997), the United
States Court of Appeals for the Third Circuit carved a limited
exception to the general proposition that a challenge to a
imposition of sentence must be brought only as a § 2255 claim.
Importantly, the Circuit did not create a § 2241 remedy for every
federal prisoner who has had a § 2255 motion denied by a court
and subsequently is unable to file a successive § 2255 petition.
Rather, Dorsainvil stands for the proposition that resort to §
2241 habeas corpus relief is warranted under the "unusual
circumstances" of a Bailey claim that could not have otherwise
been raised. The court stated that where "a complete miscarriage
of justice" was evident because a prisoner was being punished for
"an act that the law does not make criminal thereby warranting
resort to the collateral remedy afforded by § 2255, it must
follow that it is the same complete miscarriage of justice when
the AEDPA amendment to § 2255 makes that collateral remedy
unavailable." Dorsainvil, 119 F.3d at 251.
The Third Circuit went on to caution:
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' 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.
Id. at 251. The court further cautioned that the "holding that
in this circumstance § 2255 is inadequate or ineffective is
therefore a narrow one." Id.
Unlike Petitioner's case, Mr. Dorsainvil was tried, convicted
and sentenced within the Third Circuit. Petitioner Nwanze was
tried, convicted and sentenced within the Fourth Circuit and now
seeks to have this Court bestow upon him the benefit of the Third
Circuit's Dorsainvil decision.
Petitioner's request is not the first of its kind; a similar
case presented itself in the United States Court for the Middle
District of Pennsylvania in Alamin v. Gerlinski, 30 F. Supp.2d 464
(M.D.Pa. 1998). In that case, Nuradeen Alamin pled guilty to
various crimes, including 18 U.S.C. § 924(c), in 1993. In July
1995, Alamin filed a § 2255 motion raising claims other than
Bailey-type claims, which the court denied. Alamin appealed the
denial of the § 2255 motion to the Fourth Circuit which affirmed
the district court's decision on July 31, 1996. In the meantime,
the U.S. Supreme Court issued the Bailey decision. In January
1997, Alamin moved the Fourth Circuit for permission to file a
second § 2255 motion, so that he could pursue a Bailey claim.
On July 7, 1997, the Fourth Circuit refused Alamin's request (on
the implied basis that he could not satisfy the § 2255
requirements for filing a second or successive 2255 motion).
Alamin then filed a habeas corpus petition pursuant to
28 U.S.C. § 2241 in the Middle District of Pennsylvania (the district in
which he found himself incarcerated), again claiming his
conviction under 924(c) was invalid under Bailey.
Respondent Gerlinski filed a motion to dismiss arguing that the
§ 2241 petition was actually a second § 2255 motion and should be
dismissed for lack of subject matter jurisdiction. According to
the respondent, the petition was barred by the gatekeeping
provision of § 2255 and because the Fourth Circuit had already
denied Alamin's attempt to file a second § 2255 motion raising
the Bailey issue. U.S. District Judge William W. Caldwell
denied the motion to dismiss and transferred the petition to the
sentencing court, stating
The government cannot defeat this petition by arguing
that the Fourth Circuit already dismissed Alamin's
attempt to litigate his Bailey claim in a
successive motion under section 2255. We are not
allowing a 2255 motion to proceed in the face of the
Fourth Circuit's contrary ruling. We are allowing a
2241 petition under Dorsainvil.
Id. at 467 (emphasis added).