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CHEN v. APKER

United States District Court, M.D. Pennsylvania


May 16, 2005.

BAO DENG CHEN, Petitioner,
v.
CRAIG APKER, Respondent.

The opinion of the court was delivered by: CHRISTOPHER CONNER, District Judge

ORDER

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. ยง 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 ADOPTED.
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.
20050516

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