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September 28, 2005.


The opinion of the court was delivered by: RICHARD CONABOY, Senior District Judge



Johnny Gatewood, an inmate presently confined at the United States Penitentiary, Lewisburg, Pennsylvania (USP-Lewisburg), initiated this pro se petition pursuant to 28 U.S.C. § 2241. The petition is accompanied by an in forma pauperis application. Named as Respondent is USP-Lewisburg Warden Joe Smith.

  Petitioner states that he was convicted of robbery affecting interstate commerce in violation of the Hobbs Act and two (2) counts of kidnaping following a jury trial in the United States District Court for the Western District of Tennessee. He was sentenced on December 29, 1997 to a term of life imprisonment.*fn1

  Following a direct appeal, Gatewood's conviction was affirmed, but his sentence was vacated and remanded for further proceedings in part. See United States v. Gatewood, 184 F.3d 550 (6th Cir. 1999). However, the Court of Appeals for the Sixth Circuit in an en banc decision subsequently vacated that determination. See United States v. Gatewood, 204 F.3d 680 (6th Cir. 1999). Thereafter, the Sixth Circuit affirmed the conviction and sentence imposed by the district court. See United States v. Gatewood, 230 F.3d 186 (6th Cir. 2000).

  In his present action, Gatewood asserts that his federal conviction violated his due process rights under the Fifth and Sixth Amendments. Specifically, his petition contends that: (1) "he was plainly incompetent to stand trial, give any uncounseled statements pre-trial, et cetera;"*fn2 (2) the Sixth Circuit's en banc decision violated clearly established federal law; and (3) his sentence was excessive because the sentencing Guidelines are no longer mandatory.

  Petitioner's claims are premised in part on the United States Supreme Court's decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000) and its more recent holding in United States v. Booker, 125 S. Ct. 738 (2005). In Apprendi, the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. Booker reaffirmed Apprendi adding that the Federal Sentencing Guidelines were not mandates but advisory only.

  Petitioner additionally notes that he did not previously challenge his conviction via a petition under 28 U.S.C. § 2255. Gatewood further indicates that because the limitations period for § 2255 has expired, he has no other available procedure by which to challenge the constitutionality of his conviction. See id. at ¶ 12.


  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). In his instant action, Gatewood is clearly challenging the legality of his federal criminal conviction and sentence which occurred in the Western District of Tennessee.

  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 ...

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