The opinion of the court was delivered by: MALCOLM MUIR, Senior District Judge
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
On May 2, 2005, Kent Griffin, an inmate at the Federal
Correctional Institution at Schuylkill in Minersville,
Pennsylvania, filed a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2241. Griffin is proceeding pro se and in forma
The Clerk of Court assigned this case to us but referred it to
Magistrate Judge J. Andrew Smyser for consideration. On July 28,
2005, the Magistrate Judge issued a report recommending that
Griffin's petition be dismissed because the claim in it may be
raised only in a motion filed pursuant to 28 U.S.C. § 2255.
On August 5, 2005, Griffin timely filed objections to the
Magistrate Judge's Report and Recommendation. Respondent Warden
Ronald R. Holt filed his opposition brief on August 22, 2005. The
time allowed for Griffin to file a reply brief expired on September 9, 2005, and to this date no such brief has been filed.
Griffin's objections to the Report and Recommendation are ripe
When objections are filed to a report of a Magistrate Judge, we
make a de novo determination of those portions of the report or
specified proposed findings or recommendations made by the
magistrate judge to which there are objections. United States v.
Raddatz, 447 U.S. 667 (1980); 28 U.S.C. § 636(b)(1); M.D. Pa.
Local Rule 72.31. Furthermore, district judges have wide
discretion as to how they treat recommendations of the Magistrate
Judge. Id. In providing for a de novo review determination
rather than a de novo hearing, Congress intended to permit
whatever reliance a district judge, in the exercise of sound
discretion, chooses to place on a Magistrate Judge's proposed
findings and recommendations. Id. See also Mathews v. Weber,
423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir.
Griffin was convicted in the United States District Court for
the Eastern District of Virginia in 2001 for being a convicted
felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). He unsuccessfully appealed the conviction, and his
attempt to obtain post-conviction relief in a habeas corpus
petition filed pursuant to 28 U.S.C. § 2255 also failed. Griffin now claims in the pending § 2241 petition that his
conviction was obtained in violation of his Fifth Amendment right
to due process, his Sixth Amendment right to a jury trial, and a
section of the International Covenant of Civil and Political
Rights. A review of the documents which Griffin has filed in this
case indicates that his sole substantive claim is that he is
entitled to relief because certain sentencing factors which had
not been submitted to the jury were used to enhance his sentence.
In essence, Griffin seeks relief based strictly on the principles
discussed by the United States Supreme Court in Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).
Magistrate Judge Smyser recommends that the petition be
dismissed without considering the substantive merits of the
claims because they may be considered only in a motion filed
pursuant to 28 U.S.C. § 2255. The Magistrate Judge's ten-page
Report and Recommendation discusses in detail the case law
supporting that conclusion.
The Court of Appeals for the Third Circuit has expressly held
that § 2255 is not inadequate or ineffective where the claim to
be raised is based on Apprendi. See Okereke v. United States
of America, 307 F.3d 117, 120-121 (3d Cir. 2002); Dorsainvil,
119 F.3d 245 (3d Cir. 1997) (discussing the circumstances in
which a remedy pursuant to § 2255 would be "inadequate or
ineffective"); Application of Galante, 437 F.2d 1164, 1165 (3d Cir. 1971). We
agree with the Magistrate Judge's determination that Griffin's
failure to demonstrate that the remedy created in
28 U.S.C. § 2255 is inadequate or ineffective to test the legality of his
detention precludes this court from considering the claims
asserted in his § 2241 petition.
Griffin's reference to the International Covenant of Civil and
Political Rights does not alter that conclusion. The portion of
that treaty relied upon by Griffin merely provides that
anyone who is deprived of his liberty by . . .
detention shall be entitled to take proceedings
before a court, in order that the court may decide
without delay on the lawfulness of his detention and
order his release if the detention is not lawful.
International Covenant of Civil and Political Rights, Art. 9, ¶
4. It appears as though the requirements of that text were met
when Griffin filed his appeal and his § 2255 petition. To the
extent that Griffin contends that he is entitled to some further
review pursuant to that treaty, we agree with Magistrate Judge
Smyser's observation that the treaty is not self-executing and
therefore may not be enforced in a court. See Reaves v, Warden,
No. 3:01-CV-1149,2002 WL 535938 at *9 (M.D. Pa. Mar. 22, 2002)
(Conaboy, J.), aff'd, 2003 WL 193951 (3d Cir. Jan 28, 2003).
Griffin's current inability to raise his claims in a § 2255
because of that statute's procedural requirements does not render the remedy set forth in § 2255 inadequate or ineffective. See
Dorsainvil, 119 F.3d at 251. Consequently, Griffin's claims are
not subject to review in a habeas petition filed pursuant to §
We will dismiss Griffin's petition.
NOW, THEREFORE, IT IS ORDERED THAT:
1. Griffin's objections (Document 12) to Magistrate
Judge Smyser's Report and Recommendation are
2. Magistrate Judge Smyser's Report and
Recommendation (Document 11) filed on July 28, 2005,
is adopted in toto.
3. Griffin's § 2241 petition (Document 1) is
4. The Clerk of Court shall close this case.
5. Any appeal from this order will be deemed ...