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
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
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
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
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 ...