United States District Court, M.D. Pennsylvania
September 28, 2005.
JOHNNY GATEWOOD, Petitioner
JOSEPH V. SMITH, WARDEN, Respondent.
The opinion of the court was delivered by: RICHARD CONABOY, Senior District Judge
MEMORANDUM AND ORDER
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 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 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).
Triestman v. United States, 124 F.3d 361 (2nd Cir. 1997),
and Dorsainvil 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)
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
Gatewood does not assert that his present action is based on
either any newly discovered evidence or a new rule of law made
retroactive to cases on collateral review. Unlike Dorsainvil,
Petitioner's present claims are not premised on any intervening
change in substantive law that would negate the criminal nature
of his conduct with respect to his federal conviction.*fn3
Fundamental to Dorsainvil was the fact that the petitioner may
actually be innocent of the crime charged. In this case, Gatewood
has failed to present any facts suggesting that he was not
involved in the alleged underlying criminal activity. Gatewood's
claims are based on sentencing and competency related issues,
primarily, that his sentence was improperly enhanced.
Consequently, it is apparent that the claims for relief pending
before this Court have nothing to do with the actual question of Petitioner's guilt. It is additionally recognized that in
Okereke v. United States, 307 F.3d 117, 120-121 (3d Cir. 2002),
the Third Circuit established that under Dorsainvil, § 2255 is
not inadequate or ineffective to raise Apprendi claims.
Furthermore, Gatewood's petition is also premised in part on
the Booker decision. In Tyler v. Cain, 533 U.S. 656, 663
(2001),*fn4 the Supreme Court established that a new rule of
law is not made retroactive to cases on collateral review
unless the Court itself holds it to be retroactive. The Court of
Appeals for the Third Circuit recently held that the Booker
decision does not have retroactive effect. See Lloyd v. United
States, 407 F. 3d 608, 615-16 (3d Cir. 2005).*fn5 It has
also been held that Apprendi cannot be retroactively applied.
United States v. Swinton, 333 F.3d 481 (3d Cir. 2003).
Since Booker and Apprendi cannot presently be applied retroactively to cases on collateral review, this Court is
precluded from considering any such claims by Gatewood. See
United States v. Pinkston, 153 F. Supp. 2d 557 (M.D. Pa. 2001).
Pursuant to the above discussion, Petitioner may not assert his
present claims under § 2241. Accordingly, the petition will be
dismissed without prejudice. Gatewood, if he so chooses, may
reassert any of his present claims by filing a § 2255 action or
if appropriate, an application for leave to file a second or
successive § 2255 petition. An appropriate Order will enter.
AND NOW, THIS 28th DAY OF SEPTEMBER, 2005, for the reasons
set forth in the foregoing Memorandum, IT IS HEREBY ORDERED THAT:
1. Petitioner's request to proceed in forma
pauperis is granted.
2. The petition for a writ of habeas corpus is
dismissed without prejudice.
3. The Clerk of Court is directed to close the case.
4. Based on the Court's determination herein, there
is no basis for the issuance of a certificate of
© 1992-2005 VersusLaw Inc.