The opinion of the court was delivered by: WILLIAM NEALON Jr., Senior District Judge
Presently before the court is a petition for writ of corpus
filed pursuant to 28 U.S.C. § 2241 by Petitioner, Eric Hicks
("Hicks"), an inmate currently confined in the Schuylkill Federal
Correctional Institution ("FCI-Schuylkill"), Minersville,
Pennsylvania. Hicks challenges the validity of his conviction
from the United States District Court for the District of
Columbia. Along with his petition, Hicks filed an application to
proceed in forma pauperis. Named as the sole respondent is
the Warden at FCI-Schuylkill.
On March 2, 1994, following a jury trial in the United States
District Court for the District of Columbia, Hicks was found
guilty of one count of conspiracy to participate in racketeering
narcotics, in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962 (d); one count
of conspiracy to distribute and possession with intent to
distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1)
and (b) and three separate counts of distribution of cocaine base
and aiding and abetting, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B)(iii); (b)(1)(C), and 18 U.S.C. § 2. See United
States v. White, et al., Crim. Action No. 1:93-cr-0097-JR-2
On May 11, 1994, the District Court for the District of
Columbia sentenced Hicks to concurrent life sentences on the RICO
charge and the charge of conspiracy to distribute and possession
with intent to distribute cocaine base; a concurrent 480 month
term of incarceration for distribution of cocaine base and aiding
and abetting, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B)(iii) and 18 U.S.C. § 2, to run concurrently with Hick's
concurrent 240 month sentences on the remaining two counts of
distribution of cocaine base and aiding and abetting. Id.
Hicks' sentence is to be followed by five years supervised
release and a mandatory special assessment. Id. Hicks filed a
direct appeal from his conviction. On June 27, 1997, the United
States Court of Appeals for the District of Columbia affirmed
Hicks' conviction. See United States v. White, 116 F.3d 903
(D.C. Cir. 1997). On November 2, 1998, Hicks filed a petition with the sentencing
court to vacate his conviction and sentence pursuant to
28 U.S.C. § 2255. See United States v. White, et al., Crim. Action No.
1:93-cr-0097-JR-2 (D.D.C. 1993). On November 6, 2000, the
sentencing court denied Hicks' § 2255 motion. Id. Hicks
appealed the sentencing court's denial of his § 2255 motion to
the United States Court of Appeals for the District of Columbia.
Id. By Order dated July 26, 2002, the Court of Appeals for the
District of Columbia affirmed the District Court's denial of
Hicks' § 2255 motion. United States v. Hicks, No. 01-2040 (D.C.
Cir. July 26, 2002).
On August 8, 2005, filed the instant petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. 1, petition).
He seeks relief on the basis of the following:
1. Petitioner's right to confrontation was denied
when the district court considered extrinsic
information and imposed a "gag" order on petitioner's
attorney which violated petitioner's right to
2. Petitioner's right to confrontation was denied
when the court refused to allow petitioner to
confront jurors who alleged extra-judicial contact. Id. For the reasons that follow, the Court will grant
Petitioner's application to proceed in forma pauperis for
the sole purpose of filing the action, and the petition for writ
of habeas corpus will be dismissed, without prejudice, to Hicks'
right, if any, to pursue a successive § 2255 motion in the
A federal criminal defendant's conviction and sentence are
subject to collateral attack in a proceeding before the
sentencing court pursuant to 28 U.S.C. § 2255. E.g., United
States v. Addonizio, 442 U.S. 178, 179 (1979). In the instant
case, Hicks clearly maintains that his federal conviction and
sentence violates his constitutional rights.
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" (emphasis added).
A motion under § 2255 is "`inadequate or ineffective'" only
where it is established "`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.'" Application
of Galante, 437 F.2d 1164, 1165 (3d Cir. 1971) (per curiam)
(quoting United States ex rel. Leguillou v. Davis,
212 F.2d 681, 684 (3d Cir. 1954)). It has been recognized that the burden
is on the habeas petitioner to allege or demonstrate inadequacy
or ineffectiveness. See Id.; Cagle v. Ciccone, 368 F.2d 183,
184 (8th Cir. 1966). Furthermore, prior unsuccessful § 2255
motions filed in the sentencing court are insufficient in and of
themselves to show that the motion remedy is inadequate or
ineffective. 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). "It is the inefficacy
of the remedy, not a personal inability to utilize it, that is
determinative. . . ." Garris v. Lindsay, 794 F.2d 722, 727
(D.C. Cir.) (emphasis added), cert. denied, 479 U.S. 993
The United States Court of Appeals for the Third Circuit has
held that as to issues cognizable by the sentencing court under §
2255, a motion under § 2255 "supersedes habeas corpus and
provides the exclusive remedy." Strollo v. Alldredge,
463 F.2d 1194, 1195 (3d Cir.) (per curiam), cert. denied, 409 U.S. 1046
(1972). Moreover, the legislative limitations 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. In Re Dorsainvil,
119 F.3d 245, 251 (3d Cir. 1997).
To seek federal post-conviction relief from a judgment of
conviction, persons convicted in federal court are required to
bring their collateral attacks challenging the validity of their
conviction and sentence by filing a motion to vacate sentence
pursuant to 28 U.S.C. § 2255, not under 28 U.S.C. § 2241. Id.
at 249. If a prisoner attempts to challenge his conviction or
sentence under 28 U.S.C. § 2241, the habeas petition must be
dismissed for lack of jurisdiction. Galante, 437 F.2d at 1165.
It is the petitioner's burden to prove that § 2255 would be an
inadequate or ineffective remedy. 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)). Hicks has not met
this burden. Moreover, Hicks does not state that he has requested
permission from the United States District Court of Appeals for
the District of Columbia for leave to file a successive petition.
There remains that possibility that Hicks would be granted
permission by the District of Columbia Court of Appeals to file a
successive § 2255 motion, if appropriate. Thus, the court will
dismiss Hicks' petition for a writ of habeas corpus under
28 U.S.C. § 2241. Petitioner may seek leave to file a second or successive § 2255 motion. An
appropriate order is attached. ORDER
NOW, THIS 3rd DAY OF OCTOBER, 2005, for the reasons set
forth in the foregoing Memorandum, IT IS HEREBY ORDERED THAT:
1. Petitioner's application to proceed in forma
pauperis (Doc. 2) is GRANTED for the sole purpose
of filing the petition.
2. The petition for a writ of habeas corpus (Doc. 1)
is DISMISSED, without prejudice, for lack of