The opinion of the court was delivered by: RICHARD CONABOY, Senior District Judge
This pro se petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241 was filed by Wade Knight, an inmate presently
confined at the Allenwood United States Penitentiary, White Deer,
Pennsylvania. The petition is accompanied by an in forma
pauperis application. Named as sole Respondent is the United
States of America.
Petitioner states that he was convicted of robbery related
charges following a jury trial in the United States District
Court for the Eastern District of Pennsylvania. Knight was
sentenced to a two hundred and thirty-five (235) month term of
incarceration and ordered to pay restitution on September 6,
2000. He unsuccessfully appealed his conviction to the United States Court of Appeals for the Third Circuit.*fn1
Petitioner adds that he also unsuccessfully challenged his
conviction via a petition under 28 U.S.C. § 2255.
In his present action, Knight seeks to "correct the sentencing
restitution portion" of his federal sentence. Doc. 1, p. 9.
Petitioner contends that the trial court abused its discretion in
that it "failed to determine the appropriate amount of
restitution." Id. His petition also claims that the payment of
restitution should have been divided between he and his
co-defendant. Knight further asserts that his habeas corpus
petition should be entertained because his restitution claim was
previously raised in an unsuccessful request to file a second or
successive § 2255 action.
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).
The usual avenue for federal prisoners seeking to challenge the
validity of a federal court conviction or sentence is a § 2255
motion in the sentencing court. In re Dorsainvil, 119 F.3d 245,
249 (3d Cir. 1997). 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."
28 U.S.C. § 2255 (emphasis added).
A § 2255 motion "supersedes habeas corpus and provides the
exclusive remedy" to one in custody pursuant to a federal court conviction. Strollo v. Alldredge, 463 F.2d 1194, 1195 (3d
Cir.), cert. denied, 409 U.S. 1046 (1972). "Section 2241 `is
not an additional, alternative or supplemental remedy to
28 U.S.C. § 2255.'" Myers v. Booker, 232 F.3d 902, 2000 WL
1595967, at *1 (10th Cir. Oct. 26, 2000) (citing Bradshaw v.
Story, 86 F.3d 164, 166 (10th Cir. 1996)), cert. denied,
122 S.Ct. 1951 (2002).
Only if it is shown that a § 2255 motion "is inadequate or
ineffective to test the legality of . . . detention," may a
federal inmate resort to § 2241 to challenge the validity of the
conviction or sentence.
It has long been the rule in this circuit that "the
remedy by motion [under § 2255] can be `inadequate or
ineffective to test the legality of . . . detention'
only if it can be shown that some limitation of scope
or procedure would prevent a Section 2255 proceeding
from affording the prisoner a full hearing and
adjudication of his claim of wrongful detention."
United States v. Brooks, 230 F.3d 643
, 648 (3d Cir. 2000)
(citing United States ex rel. Leguillou v. Davis, 212 F.2d 681
684 (3d Cir. 1954)); see also Application of Galante,
437 F.2d 1164
, 1165 (3d Cir. 1971) (per curiam) (same). As noted by
the Court of Appeals for the Fifth Circuit, a petitioner has the
burden to prove that the remedy afforded by § 2255 is inadequate
or ineffective. Reyes-Requena v. United States, 243 F.3d 893
901 (5th Cir. 2001) (citing Pack v. Yusuff, 218 F.3d 448, 452
(5th Cir. 2000)). Satisfaction of this burden cannot be accomplished by simply
showing that a prior § 2255 motion has been denied. In re
Davenport, 147 F.3d 605
, 608 (7th Cir. 1998); Tripati v.
Henman, 843 F.2d 1160
, 1162 (9th Cir.), cert. denied,
488 U.S. 982
(1988); Litterio v. Parker, 369 F.2d 395
, 396 (3d Cir.
1966) (per curiam). In his present petition, Knight acknowledges
that his present claim of improper calculation of restitution was
previously asserted in an unsuccessful application for leave to
file a second or successive § 2255 petition. To allow Knight to
initiate a habeas petition in his district of confinement
asserting the same claim would obliterate congressional attempts
to promote finality in federal criminal cases.
Triestman v. United States, 124 F.3d 361 (2nd Cir. 1997),
and Dorsainvil also addressed what circumstances make a § 2255
remedy inadequate and ineffective. The legislative limitations
(either the statute of limitations or gatekeeping provisions
outlined supra at 4-5) placed on § 2255 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) (Conaboy, J.).
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 or sentence.
Knight does not assert that his present action is based on any
newly discovered evidence. His claim is also not premised on a
new rule of law made retroactive to cases on collateral review.
Unlike Dorsainvil, Petitioner's present claim is not related to
any intervening change in substantive law that would negate the
criminal nature of his conduct with respect to his federal