United States District Court, E.D. Pennsylvania
July 20, 2004.
OSSIE ROBERT TRADER
UNITED STATES PAROLE COMMISSION.
The opinion of the court was delivered by: JACOB HART, Magistrate Judge
REPORT AND RECOMMENDATION
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
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
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