United States District Court, M.D. Pennsylvania
May 16, 2005.
BUCKLEY OTTO, Petitioner
TROY WILLIAMSON, WARDEN, Respondent.
The opinion of the court was delivered by: JAMES McCLURE, Senior District Judge
MEMORANDUM AND ORDER
Buckley Otto, an inmate presently confined at the Allenwood
Federal Correctional Institution, White Deer, Pennsylvania
(FCI-Allenwood), filed this pro se petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241. Accompanying the
petition is an in forma pauperis application. Named as
Respondent is FCI-Allenwood Warden Troy Williamson.
Petitioner states that he was convicted of four (4) counts of
bank robbery following a jury trial in the United States District
Court for the District of Maine. On June 30, 1983, Otto was sentenced to a twenty (20) year term of
incarceration.*fn1 Petitioner acknowledges that he did not
pursue a direct appeal. Otto states that he did unsuccessfully
seek collateral relief in three (3) actions filed pursuant to
28 U.S.C. § 2255. Specifically, two of his § 2255 petitions were
denied in 1985 while the third petition was dismissed on August
Otto's present petition claims entitlement to federal habeas
corpus relief on the grounds that: (1) the trial court improperly
instructed the jury; (2) the evidence presented at trial failed
to establish that Petitioner committed a crime. Petitioner
indicates that both of his present claims were previously
asserted in an application requesting leave to file a second or
successive § 2255 petition but were not reviewed on their merits.
See Record document no. 1, ¶¶ 14-15. He further maintains
that his § 2255 remedy is inadequate or ineffective.
Habeas corpus petitions brought under § 2241 are subject to
summary dismissal pursuant to Rule 4 ("Preliminary Consideration
by the Judge") of the Rules Governing Section 2254 Cases in the United States District
Courts, 28 U.S.C. foll. § 2254 (1977) (applicable to § 2241
petitions under Rule 1(b)). See, e.g., Patton v. Fenton,
491 F. Supp. 156, 158-59 (M.D. Pa. 1979). Rule 4 provides in
pertinent part: "If it plainly appears from the face of the
petition and any exhibits annexed to it that the petitioner is
not entitled to relief in the district court, the judge shall
make an order for its summary dismissal and cause the petitioner
to be notified." A petition may be dismissed without review of an
answer "when the petition is frivolous, or obviously lacking in
merit, or where . . . the necessary facts can be determined from
the petition itself. . . ." Allen v. Perini, 424 F.2d 134, 141
(6th Cir.), cert. denied, 400 U.S. 906 (1970). Accord Love
v. Butler, 952 F.2d 10, 15 (1st Cir. 1991).
A federal criminal defendant's sentence is subject to
collateral attack in a proceeding before the sentencing court
pursuant to 28 U.S.C. § 2255. E.g., United States v.
Addonizio, 442 U.S. 178, 179 (1979). Section 2255 provides, in
part, that "[a]n 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 if it
appears that the applicant has failed to apply for relief, by
motion to the court which sentenced him, or that such court has
denied him relief, unless it also appears that the remedy by
motion is inadequate or ineffective to test the legality of his
detention" (emphasis added). 28 U.S.C. § 2255; Davis v. United
States, 417 U.S. 333, 343 (1974); Hill v. United States, 368 U.S. 424, 427
(1962); In re Dorsainvil, 119 F.3d 245, 249 (3rd Cir.
1997); In re Vial, 115 F.3d 1192, 1194 (4th Cir 1997);
Application of Galante, 437, F.2d 1164, 1165 (3rd Cir.
1971). In his instant action, Otto is clearly challenging the
legality of his federal criminal conviction and sentence which
occurred in the District of Connecticut.
In ruling on the issue of inadequate or ineffective, the
appellate courts have instructed that a collateral relief motion
is inadequate or ineffective only where it is established that
some limitation of scope or procedure would prevent the
collateral remedy from affording the prisoner a full hearing and
adjudication of his claim of wrongful detention. See Galante,
437 F.2d at 1165 (3d Cir. 1971) (quoting United States ex rel.
Leguillou v. Davis, 212 F. 2d 681, 684 (3d Cir. 1954)). It has
also been established that the burden is on the habeas petitioner
to allege or demonstrate inadequacy or ineffectiveness. See
id.; Cagle v. Ciccone, 368 F.2d 183, 184 (8th Cir 1966).
Furthermore, prior unsuccessful collateral relief motions filed
in the sentencing court have been held to be insufficient in and
of themselves to show that the motion remedy is inadequate and
ineffective. Tripati v. Herman, 843 F.2d 1169, 1162 (9th
Cir.), cert. denied, 488 U.S. 982 (1988); Litterio v. Parker,
369 F. 2d 395, 396 (3d Cir. 1966) (per curiam). "It is the
inefficacy of the remedy, not a personal inability to utilize it, that is determinative. . . ." Garris v.
Lindsay, 794 F.2d 722, 727 (D.C. Cir.), cert. denied,
479 U.S. 993 (1986). The United States Court of Appeals for the Third
Circuit has held that, as to issues cognizable by the sentencing
court under § 2255, a § 2255 "supersedes habeas corpus and
provides the exclusive remedy." Strollo v. Alldredge,
462 F.2d 1194, 1195 (3d Cir.) (per curiam), cert. denied, 409 U.S. 1046
Triestman v. United States, 124 F.3d 361 (2nd Cir. 1997),
and Dorsainvil also addressed what circumstances make a
collateral relief remedy inadequate and ineffective. The
legislative limitations placed on collateral relief proceedings
simply do not render the remedy inadequate or ineffective so as
to authorize pursuit of a habeas corpus petition in this court.
United States v. Brooks, 230 F.3d 643, 647 (3rd Cir. 2000);
Dorsainvil, 119 F.3d at 251. "To hold otherwise would simply
effect a transfer of forum for the adjudication of successive
challenges to the validity of a conviction." Kennemore v. True,
Civil No. 98-1175, slip op. at 6. (M.D. Pa. July 28, 1998)
Both the Triestman and Dorsainvil courts held that a § 2255
motion was only "inadequate and ineffective" (thus allowing a
petitioner to bring a § 2241 habeas corpus action) where the
denial of a habeas action would raise serious constitutional
issues. Triestman, 124 F.3d at 377; Dorsainvil,
119 F.3d at 249. The serious constitutional issue was that a change in substantive law
rendered the conduct for which petitioner was convicted no longer
criminal. Triestman, 124 F.3d at 366; Dorsainvil,
119 F.3d at 251. Thus, these cases set a high bar for what a court will
consider a serious constitutional issue sufficient to allow a
petitioner to bring a § 2241 petition to challenge a conviction
Petitioner admits that he previously asserted his present
claims in a presumably unsuccessful application for leave to file
a second or successive § 2255 action. Otto also acknowledges that
he filed three (3) prior unsuccessful § 2255 petitions during the
1980's. The Petitioner presently argues that because he was
denied his right to trial by jury, he should be allowed to pursue
this § 2241 action.
Otto's present claims do not fall within the narrow exception
created by Dorsainvil and Triestman. Specifically, there is
no allegation by Petitioner that his claims are based on any
newly discovered evidence. Likewise, there is no contention that
they are being raised pursuant to any new intervening substantive
rule of criminal law which can apply retroactively to cases on
Unlike Dorsainvil, Petitioner's claims are also not premised
on any intervening change in substantive law that would negate
the criminal nature of his conduct with respect to his federal
conviction. Otto has also not presented any facts to show that the denial of his habeas action would raise
serious constitutional issues.
Consequently, since Otto has already asserted his claims in a
prior unsuccessful application to file a second or successive §
2255 petition and has not otherwise established that his remedy
under § 2255 is inadequate or ineffective under the standards
announced in Dorsainvil and Triestman, his petition for writ
of habeas corpus will be dismissed without prejudice. Petitioner,
if he so chooses, may again reassert his present claims through
an application seeking leave to file a second or successive §
2255 motion. An appropriate Order will enter.
IT IS THEREFORE ORDERED THAT:
1. Petitioner's request to proceed in forma
pauperis is granted for the sole purpose of the
filing of this action.
2. The petition for writ of habeas corpus is
dismissed without prejudice.
3. The Clerk of Court is directed to close this case.
4. There is no basis for the issuance of a
Certificate of Appealability.