United States District Court, Middle District of Pennsylvania
October 17, 2001
CHARLES BROWN, PETITIONER,
JAKE MENDEZ, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Thomas I. Vanaskie, Chief United States District Judge.
M E M O R A N D U M
On April 30, 2001, Charles Brown, an inmate confined at the Allenwood
United States Penitentiary, White Deer, Pennsylvania ("USP-Allenwood"),
brought this habeas corpus proceeding pursuant to 28 U.S.C. § 2241 to
challenge the validity of a life sentence imposed on December 8, 1994 by
the United States District Court for the Southern District of Florida.
Brown contends that his sentence is invalid under Apprendi v. New
Jersey, 530 U.S. 466 (2000), because the jury was not delegated the
authority to decide beyond a reasonable doubt whether he was responsible
for the distribution of at least 50 grams of cocaine base, the threshold
amount upon which to premise a maximum prison term of life. Because Brown
has failed to show that the procedure established by Congress in
28 U.S.C. § 2255 for asserting a collateral challenge to the validity
of a sentence imposed by a federal court is inadequate or ineffective in
the circumstances presented here, his § 2241 habeas corpus petition
will be dismissed.
On January 27, 1994, a grand jury in the Southern District of Florida
returned a one-count indictment against Brown, charging him with unlawful
distribution of "a mixture and substance containing a detectible amount
of cocaine, in the form of cocaine base, in violation of Title 21, United
States Code, Section 841(a)(1)."*fn1 The indictment did not charge a
specific amount of cocaine base attributable to Brown's
narcotic-trafficking activities. Following a jury verdict of guilty on
the indictment, Brown was sentenced to a term of life imprisonment.
According to Brown, this sentence was based upon the sentencing court's
determination that Brown was responsible for the distribution of at least
50 grams of cocaine base.*fn2
Brown's conviction and sentence were affirmed on his direct appeal in
an unpublished opinion. United States v. Brown, 100 F.3d 970 (11th Cir.
1996). The Supreme Court denied Brown's petition for a writ of certiorari
on February 18, 1997. 519 U.S. 1140 (1997).
On November 26, 1996, Brown moved for a modification of his sentence
pursuant to 28 U.S.C. § 2255. That motion was denied.
On September 18, 1997, Brown filed a motion to "correct sentence
pursuant to recent decision rendered by the Eleventh Circuit." On July
20, 1998, he moved to correct his sentence pursuant to
18 U.S.C. § 3582(c)(2).*fn3 The motions were considered collectively
by the trial court as a motion pursuant to 28 U.S.C. § 2255, and
denied by Order dated May 30, 2000.
Brown then filed an application with the Eleventh Circuit, requesting
leave to file a second or successive § 2255 motion to raise the
(1) The government's failure to prove drug amount to
the jury beyond a reasonable doubt violated due
process; (2) the district court was without
jurisdiction to sentence Brown pursuant to
21 U.S.C. § 841(b)(1)(A) due to deficiencies in
the indictment; (3) Brown's prior state drug
convictions were used improperly by the sentencing
court to enhance his sentence; and (4) the
government's failure to allege drug amount in the
indictment and prove that amount to the jury beyond a
reasonable doubt violated Brown's equal protection
Brown's claims were based upon Apprendi. By Order filed on March 26,
2001, the Eleventh Circuit denied the application for leave to file a
second or successive § 2255 motion, finding that Brown had failed to
make the requisite showing that Apprendi established "`a new rule of
constitutional law, made retroactive to cases on collateral review by the
On April 30, 2001, Brown turned to this Court for relief by filing a
petition under § 2241. Brown's § 2241 petition asserts the
identical claims presented to the Eleventh Circuit in his application for
leave to file a successive § 2255 motion. By Order entered May 31,
2001, the respondent was directed to answer the habeas corpus petition.
The respondent timely answered the petition on June 20, 2001, and Brown
filed a traverse on July 5, 2001. This matter is ripe for disposition.
The respondent asserts that Brown cannot challenge the validity of his
sentence by filing in the court having jurisdiction over Brown's
custodian a § 2241 petition. Instead, argues the respondent, Brown
must utilize the procedures established by
28 U.S.C. § 2255 for
seeking relief in the sentencing court, and must therefore meet the
restrictions for obtaining relief under that congressional grant of
collateral review of federal court convictions and sentences.
Indeed, "the usual avenue for federal prisoners seeking to challenge
the legality of their confinement" is a § 2255 motion in the
sentencing court.*fn6 In re Dorsainvil, 119 F.3d 245, 249 (3d Cir.
1997). As a general rule, a § 2255 motion "supersedes habeas corpus
and provides the exclusive remedy" to one in custody pursuant to a
federal court conviction. Strollo v. Alldredge, 463 F.2d 1194, 1195 (3d
Cir.), cert. denied, 409 U.S. 1046 (1972). "Section 2241 `is not an
additional, alternative or supplemental remedy to 28 U.S.C. § 2255.'"
Myers v. Booker, 232 F.3d 902, 2000 WL 1595967, at *1 (10th Cir. Oct.
26, 2000) (citing Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)).
Only if it is shown that a § 2255 motion "is inadequate or
ineffective to test the legality of . . . detention," may a federal
inmate resort to § 2241 to challenge the validity of the conviction
or sentence. "It has long been the rule of this circuit that `the remedy
by motion [under § 2255] can be "inadequate or ineffective to test
the legality of . . . detention" only if it can be shown 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.'" United States v. Brooks, 230 F.3d 643, 648 (3d
Cir. 2000) (citing United States ex rel. Leguillou v. Davis, 212 F.2d 681,
684 (3d Cir. 1954)); see also Application of Galante, 437 F.2d 1164, 1165
(3d Cir. 1971) (per curiam) (same). It is the petitioner's burden to
prove that the remedy afforded by § 2255 is inadequate or
ineffective. Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir.
2001) (citing Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000)).
A petitioner cannot meet this burden by showing that a prior § 2255
motion has been denied. In re Davenport, 147 F.3d 605, 608 (7th Cir.
1998); Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.), cert. denied,
488 U.S. 982 (1988); Litterio v. Parker, 369 F.2d 395, 396 (3d Cir. 1966)
(per curiam). Moreover, the limitations on obtaining relief under §
2255 imposed by the AEDPA do not establish the inadequacy or
ineffectiveness of the remedy. See United States v. Barrett, 178 F.3d 34,
50 (1st Cir. 1999) ("A petition under § 2255 cannot become
`inadequate or ineffective,' thus permitting the use of § 2241,
merely because a petitioner cannot meet the AEDPA `second or successive'
requirements. Such a result would make Congress's AEDPA amendment of
§ 2255 a meaningless gesture."), cert. denied, 528 U.S. 1176 (2000);
Davenport, 147 F.3d at 608 ("Congress did not change [the `inadequate or
ineffective'] language when in the Antiterrorism Act it imposed
limitations on the filing of successive § 2255 motions. The
retention of the old language opens the way to the argument that when the
new limitations prevent the prisoner from obtaining relief
2255, his remedy under that section is inadequate and he may turn to
§ 2241. That can't be right; it would nullify the limitations.");
Dorsainvil, 119 F.3d at 251 ("We do not suggest that § 2255 would be
`inadequate or ineffective' so as to enable a second petition 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.").
Thus, a denial of permission to file a successive § 2255 motion, in
itself, does not render § 2255 relief ineffective or inadequate.
See Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (per curiam)
(concluding that a habeas petitioner may not avoid the limitations
imposed on successive petitions by styling his petition as one pursuant
to § 2241 rather than § 2255), cert. denied, 120 S.Ct. 1214
Indeed, the denial of permission to file a second or successive §
2255 motion divests a district court of jurisdiction to entertain
another, similarly based, § 2255 motion. 28 U.S.C. § 2244(a).
Furthermore, a decision by the court of appeals denying permission to
file a second or successive application is not appealable.
28 U.S.C. § 2244(b)(3)(E). To allow a person to file a collateral
challenge in the district of confinement that is barred in the sentencing
court would render nugatory these congressional attempts to promote
finality in criminal cases.
Brown asserts that his claims fall within a narrow exception to the
general prohibition against § 2241 petitions to challenge federal
convictions or sentences recognized by our Court of Appeals in
Dorsainvil, supra. In Dorsainvil, the court held that a federal prisoner
barred from using a § 2255 motion under the AEDPA standards for
successive motions could resort to a § 2241 petition if the prisoner
"had no earlier opportunity to challenge his conviction for a crime that
an intervening change in substantive law may negate . . . ." 119 F.3d at
The court stressed that the holding was a "narrow one" based on
the unusual circumstance of a Supreme Court precedent decriminalizing
conduct that the petitioner could not have presented in his first §
2255 proceeding. Id. at 251-52.
Fundamental to the decision in Dorsainvil was the fact that the
petitioner may be actually innocent of the crime charged. In this case,
Brown has failed to present any allegations suggesting that he was not
responsible for the distribution of at least 50 grams of cocaine base.
Brown's failure to articulate any facts disputing the trial court's
determination as to drug quantity makes his reliance on Dorsainvil
Furthermore, Dorsainvil was based on a type of Supreme Court holding
that was not contemplated by the congressional limitations on second or
successive § 2255 motions. Congress has allowed exceptions to the
general ban on successive § 2255 motions for newly discovered
evidence that exonerates the defendant and new rules of constitutional
law made retroactive to cases on collateral review by the Supreme Court.
At issue in Dorsainvil was the retroactive application of the Supreme
Court's statutory construction of the elements of a crime. In
Dorsainvil, the petitioner was arguably innocent, but had no right to
review under § 2255. The holding in Apprendi does not fall within
Dorsainvil's narrow exception to the general rule that § 2255 is the
exclusive avenue for asserting a collateral challenge to the validity of
a sentence. First, Apprendi did not de-criminalize the conduct at issue
in this case. And second, Apprendi did not construe an ambiguous
criminal statute; it announced a new rule of constitutional law. See In
re Turner, 267 F.3d 225, 226 (3d Cir. 2001).
The Third Circuit, as well as other courts, have recognized that
congressional concerns with the finality of convictions are not offended
when a prisoner's § 2241 petition is based upon a "retroactively
applicable Supreme Court decision which establishes that the petitioner
may have been convicted of a non-existent crime." Reyes-Requena, 243
F.3d at 904. Such a holding does not announce a new rule of
constitutional law that has the potential to be applied retroactively to
cases on collateral review. Under the gatekeeping provisions of §
2255, a person arguably innocent of criminal conduct as a result of an
intervening change in the elements of the crime charged could not obtain
access to a federal court to seek relief. 9 By way of contrast, Congress
has afforded a forum for defendants like Brown who claim that a new rule
of constitutional law established by the Supreme Court redounds to their
favor. To be sure, for defendants like Brown who have already pursued a
§ 2255 motion, the announcement of a new rule of constitutional law
does not automatically open the federal courthouse doors. The defendant
must make a prima facie showing to the appropriate appeals court that
the new rule was "made retroactive to cases on collateral review by the
Supreme Court." 28 U.S.C. § 2255, ¶ 8. See generally In re:
Turner, supra, 2001 WL 1110349, * 1. But this limitation is simply an
extension of the pre-AEDPA general rule that "new constitutional rules of
criminal procedure will not be applicable to those cases which have
become final before the new rules are announced." Teague v. Lane,
489 U.S. 288, 310 (1989).*fn8 By requiring that the Supreme Court make
the new rule of constitutional law applicable to cases on collateral
review, Congress balanced the strong interest in finality of criminal
convictions with the concern that the Court be able to determine that
those exceptional holdings which "alter our understanding of the `bedrock
procedural elements' essential to the fairness of a proceeding," Tyler, at
2483, be made applicable to those persons who have already exhausted the
§ 2255 remedy. This interest in finality is more compelling where, as
here, the prisoner has already pursued one collateral challenge to a
conviction and sentence. In such a situation, Congress has determined
that the interest in finality may be overcome only if the Supreme Court
has determined, through direct holding or by decisions that "logically
permit no other conclusion than that the rule is retroactive," id. at 2486
(O'Connor, J., concurring), that a person who has already pursued a
§ 2255 motion may seek the benefit of a new rule of constitutional
law. The forum provided by Congress in which a defendant may present the
argument that the new rule has been made applicable to the petitioner by
the Supreme Court is the court of appeals having jurisdiction over the
court of conviction. The fact that the appeals court determines that the
new rule of constitutional law has not been made retroactive to cases on
collateral review does not mean that the § 2255 remedy is
"inadequate" or "ineffective." It simply means that a new rule of
constitutional law is not of such extraordinary importance as to have
prompted the Supreme Court to determine (directly or by inescapable
logical application of prior precedent) that the finality of a conviction
or sentence should yield to another round of litigation. In this event,
the defendant's detention under precedent pre-existing the new rule is
simply not wrongful.
The Court had recognized that interests of finality outweigh automatic
retroactive application of every new rule of constitutional law.
Teague, 489 U.S. at 309 ("Application of constitutional rules not in
existence at the time a conviction becomes final seriously undermines the
principle of finality which is essential to the operation of our criminal
justice system."). Congress has applied that principle in requiring that
before a second or successive § 2255 motion be filed based on a new
constitutional rule the Court determine that the rule should be applied
retroactively to cases on collateral review. Congress has afforded a
forum for obtaining a determination as to whether the defendant has made
a prima facie showing that the new rule has been made retroactive to
collateral cases by the Supreme Court. If such a prima facie showing is
made, then the defendant has the opportunity to litigate the question of
whether the Supreme Court precedent has indeed been made retroactive to
collateral cases by the Supreme Court.*fn9 Thus, § 2255 continues to
afford a prisoner a "`full hearing and
adjudication of his claim of
wrongful detention.'" Brooks, 230 F.3d at 648.*fn10
The fact is that a new rule of constitutional law does not necessarily
render detention effected under the old rule wrongful. Only if the new
rule is of such a dimension as to apply retroactively to cases on
collateral review is the detention under the old rule arguably wrongful,
and where a prisoner has already exhausted one collateral attack on the
conviction or sentence, a Supreme Court determination of retroactive
application, either explicit or by compelled implication, is required to
open the doors of the district court to the prisoner.
In this case, the Eleventh Circuit determined that Apprendi has not
been made retroactive to cases on collateral review by the Supreme
Court. The Third Circuit has also concluded (a) that the Supreme Court
did not make Apprendi retroactive to cases on collateral review, and (b)
that a conclusion that Apprendi is entitled to retrospective application
is not dictated by prior Supreme Court precedent. Turner, 2001 WL
1110349, * 4-5. To hold that § 2241 provides a procedural mechanism
for litigating Apprendi issues foreclosed from review under § 2255
would, in the words of our Court of Appeals, "effectively eviscerate
Congress's intent in amending § 2255." Dorsainvil, 119 F.3d at 251.
In short, Brown cannot invoke § 2241 to initiate another round of
litigation over his sentence when the Eleventh Circuit has found that he
is not entitled to litigate the Apprendi issues in a second or successive
collateral challenge to an otherwise final sentence.*fn11
Apprendi did not set a precedent sufficient to warrant a determination
that the AEDPA restrictions on second or successive collateral challenges
to a final conviction and sentence render the § 2255 remedy
inadequate or ineffective. See McDougall v. United States, No.
3:CV-01-1165, slip. op. at 6-7 (M.D.Pa. Oct.15, 2001); United States v.
Franco-Montoya, No. Crim. 89-33, 2001 WL 649471 (D.Me. June 8, 2001);
Moya-Reyes v. Mallisham, No. Civ. A. 4:01-CV-0576, 2001 WL 1116276, * 3
(N.D.Tex. Sept. 13, 2001) ("Moya-Reyes' claims based on Apprendi, while
raising a potential defect in the manner in which she was sentenced, do
not assert the sort of defect that can support a claim under the savings
clause of § 2255."). Accordingly, Brown's § 2241 petition will be
dismissed.*fn12 An appropriate Order follows.
O R D E R
NOW, THIS ____ DAY OF OCTOBER, 2001, for the reasons set forth in the
foregoing Memorandum, IT IS HEREBY ORDERED THAT:
1. The petition for a writ of habeas corpus is
DISMISSED, WITHOUT PREJUDICE.
2. The Clerk of Court is directed to mark this matter