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United States District Court, E.D. Pennsylvania

July 20, 2004.


The opinion of the court was delivered by: JACOB HART, Magistrate Judge


This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241, by an individual currently incarcerated at the United States Penitentiary at Beaumont, Texas. For the reasons that follow, I recommend that the petition be dismissed.

In this habeas petition, Trader claims that the United States Parole Commission changed the sentence that the late Honorable Joseph L. McGlynn imposed on Trader in 1983.*fn1 Trader claims that the sentence should have begun to run on May 13, 1982, the date on which Trader's sentencing was originally scheduled. The sentencing was continued. Thus, Judge McGlynn did not sentence Trader until April 7, 1983.

  This court does not have jurisdiction to entertain Trader's petition. The exclusive remedy for challenging the calculation of a federal sentence is a habeas petition filed pursuant to 28 U.S.C. § 2241 in the federal district court wherein the petitioner is incarcerated, naming the warden of the facility as the respondent. United States v. Smith, 101 F. Supp.2d 332, 338 (W.D.Pa. 2000) (citing Yi v. Maugans, 24 F.3d 500, 507 (3d Cir. 1994); Rios v. Wiley, 201 F.3d 257 (3d Cir. 2000); Barden v. Keohane, 921 F.2d 476, 478-79 (3d Cir. 1990); Nwanze v. Hahn, 97 F. Supp.2d 665, 669 (W.D. Pa. 2000)). Because Trader is incarcerated in Beaumont Texas, his petition is properly directed to the United States District Court for the Eastern District of Texas. Therefore, we will recommend that the habeas petition be dismissed.

  On June 16, 2004, after this Court had ordered the United States Attorney to respond to Trader's habeas petition, Trader filed a motion to amend his habeas petition. In his amended pleading, Trader attacks his conviction, claiming that he was denied counsel at trial. He attempts to characterize this claim as falling under the auspices of § 2241 in an effort to circumvent § 2255's provision requiring second or successive motions to be certified by the Court of Appeals.*fn2 Despite his characterization of this claim as part of his § 2241 petition, "challenging the manner in which the sentence is being executed," see Motion to Amend, at 10, the claim is governed by § 2255. In In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997), the Third Circuit explained,

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.
  The Circuit Court explained that there is a "safety valve" in § 2255, allowing a defendant to present his claim in a § 2241 motion if § 2255 is ineffective or inadequate to bring the claim. Id. (citing 28 U.S.C. § 2255). Thus, only when the prisoner is in the unusual position of "having no earlier opportunity to challenge his conviction for a crime" can he avail himself of § 2241. Id. at 251. Trader attempts to invoke this exception by arguing that the Supreme Court decided Arizona v. Fulminante, 499 U.S. 279 (1991), eight years after his direct appeal. Therefore, he was unable to present his claim earlier.

  In Fulminante, the Supreme Court differentiated between trial errors, which occur during a case's presentation to the jury, and structural errors, that are defects in the trial mechanism. Structural errors, the Court concluded, defied analysis by a harmless-error standard. 499 U.S. at 308-09. The denial of counsel is a structural error. Id. at 309.

  There are three problems with Trader's argument. First, Gideon v. Wainwright, 372 U.S. 335 (1963), the seminal case establishing the right to counsel at trial, was decided twenty years before Trader's conviction. Thus, the right to counsel at trial was firmly established at the time of his conviction. Second, Trader filed a § 2255 motion attacking this conviction in August of 2000. Since Trader's § 2255 motion was filed nine years after Fulminante, any claim based on Fulminante could have been presented to the court in that filing. Finally, despite Trader's assertion that he was denied counsel at trial, the docket sheet reveals that counsel entered his appearance prior to the trial. Trader absconded during the trial. Yet, counsel proceeded with the trial and filed post-verdict motions on Trader's behalf. Counsel did not withdraw his appearance until May 14, 1982, when Trader, after having been arrested, filed pro se post verdict motions alleging that counsel's performance at trial was ineffective. Thus, the docket sheet, upon which Trader relies in alleging the complete denial of counsel, establishes counsel's presence at trial.

  This is not a case falling into the exception to the general rule that an attack on the conviction is to be brought pursuant to § 2255. Trader had an opportunity to challenge his conviction. In Dorsainvil, the Third Circuit warned that a prisoner cannot "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." Id. at 251. Here, Trader is merely attempting to circumvent the portion of § 2255 which prohibits second or subsequent motions. His request to amend his § 2241 petition should be denied.

  Therefore, I make the following:

  AND NOW, this 20th day of July ____, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be dismissed. IT IS FURTHER RECOMMENDED that the Motion to Amend the § 2241 Petition be denied. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability.

  AND NOW, this ____ day of ____, 2004, upon careful and independent consideration of the petition for writ of habeas corpus, and after review of the Report and Recommendation of United States Magistrate Judge Jacob P. Hart, IT IS ORDERED that:

1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for a writ of habeas corpus is DISMISSED.
3. The Motion to Amend the Petition is DENIED
  4. There is no basis for the issuance of a certificate of appealability.

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