United States District Court, M.D. Pennsylvania
May 16, 2005.
BAO DENG CHEN, Petitioner,
CRAIG APKER, Respondent.
The opinion of the court was delivered by: CHRISTOPHER CONNER, District Judge
AND NOW, this 16th day of May, 2005, upon consideration of the
report of the magistrate judge (Doc. 13), recommending that the
petition for writ of habeas corpus (Doc. 1) be dismissed for lack
of jurisdiction, and following an independent review of the
record, and it appearing that the petition challenges a sentence
imposed by the District Court for the Southern District of New
York on the basis of the constitutional rights recognized in
United States v. Booker, 125 S. Ct. 738 (2005), see
28 U.S.C. § 2255 ("A prisoner in custody under sentence of a [district]
court . . . claiming . . . that the sentence was imposed in
violation of the Constitution or laws of the United States . . .
may move the court which imposed the sentence to vacate, set
aside or correct the sentence."), and that a motion for relief in
that court would be adequate and effective to test the legality
of petitioner's detention, see id. ("An application for a
writ of habeas corpus in behalf of a prisoner who is authorized
to apply for relief by motion pursuant to this section? shall
not be entertained [by a court other than the sentencing court] . . .
unless . . . the remedy by motion is inadequate or
ineffective to test the legality of his detention."); Okereke v.
United States, 307 F.3d 117, 120 (3d Cir. 2002) (explaining that
change in constitutional interpretation does not render motion in
sentencing court ineffective or inadequate) (citing Cradle v.
United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002)
(per curiam)); In re Dorsainvil, 119 F.3d 245, 249 (3d Cir.
1997) (same); see also In re Olopade, 403 F.3d 159, 163-64
(3d Cir. 2005) (holding that Booker does not apply
retroactively), it is hereby ORDERED that:
1. The report of the magistrate judge (Doc. 11) is
2. The petition for writ of habeas corpus (Doc. 1) is
DISMISSED for lack of jurisdiction.
3. The Clerk of Court is directed to CLOSE this case.
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