United States District Court, M.D. Pennsylvania
September 28, 2005.
PETE WILKERSON, Petitioner
JOSEPH V. SMITH, Respondent.
The opinion of the court was delivered by: RICHARD CONABOY, Senior District Judge
MEMORANDUM AND ORDER
Pete Wilkerson, an inmate presently confined at the United
States Penitentiary, Lewisburg, Pennsylvania (USP-Lewisburg),
initiated this pro se petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241. Accompanying the petition is an
in forma pauperis application. Named as Respondent is
Warden Joseph Smith of USP-Lewisburg.
Wilkerson states that he entered a guilty plea to charges of
armed bank robbery in violation of § 2113(a) & (d), and carrying
and using a firearm during the commission of a crime of violence
under 18 U.S.C. 924(c) in the United States District Court for
the Western District of Washington. He was sentenced on December
22, 2000 to an aggregate one hundred and ninety-two (192) month
term of incarceration.
Petitioner indicates that he did not file a direct appeal of
his federal conviction. There is also no indication that
Wilkerson challenged his federal conviction via a motion pursuant to 28 U.S.C. § 2255.
In his present action, Petitioner alleges that the mandatory
application of the Federal Sentencing Guidelines in his case
violated his rights under the Sixth Amendment. Wilkerson claims
entitlement to relief based on the United States Supreme Court's
recent decision in United States v. Booker, 125 S. Ct. 738
(2005). Previously, in Apprendi v. New Jersey, 530 U.S. 466
(2000), 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 adds that his present petition should be entertained
because Booker was not available during the period in which he
could have sought relief under 28 U.S.C. § 2255. See Doc. 1, ¶
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
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). 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
To allow Wilkerson to file a habeas petition in his district of
confinement 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)
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.
Wilkerson does not assert that his present action is based on
any newly discovered evidence. He also has not established that the Booker decision is retroactively applicable to cases on
collateral review. Unlike Dorsainvil, Petitioner's present
claim is not premised on any intervening change in substantive
law that would negate the criminal nature of his conduct with
respect to his federal conviction. Fundamental to Dorsainvil
was the fact that the petitioner may actually be innocent of the
crime charged. In this case, Wilkerson has failed to present any
allegations suggesting that he was not involved in the alleged
underlying criminal activity. Rather, his claims are based on a
sentencing related issues, namely, 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.
With respect to his Booker claim, a review of that decision
provides that it has not been made retroactive to cases on
collateral review. In Tyler v. Cain, 533 U.S. 656, 663
(2001),*fn1 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. A review of
Booker reveals that there is no indication that said decision was determined to have
retroactive effect. Furthermore, the Court of Appeals for the
Third Circuit recently held that the Booker decision does not
have retroactive effect. See Lloyd v. United States, 2005 WL
1155220 (3d Cir. May 17, 2005).
Since Booker cannot presently be applied retroactively to
cases on collateral review, this Court is precluded from
considering Wilkerson's petition. See United States v.
Pinkston, 153 F. Supp. 2d 557 (M.D. Pa. 2001). Based on the
foregoing analysis, in this case the fact that Booker may have
been decided after conclusion of the limitations period for
initiation of Petitioner's direct appeal and initial § 2255
action, does not allow him to assert his claims as a § 2241
Consequently, the petition for writ of habeas corpus will be
dismissed without prejudice. Wilkerson, if he so chooses, may
reassert any Booker claim by filing a § 2255 petition with the
sentencing court. 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 is granted leave to proceed in
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
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