The opinion of the court was delivered by: WILLIAM NEALON Jr., Senior District Judge
Petitioner, Charles Colden, an inmate confined in the
Schuylkill Federal Correctional Institution, Minersville,
Pennsylvania ("USP-Schuylkill"), filed the above captioned
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Colden challenges the validity of a 180-month term of
imprisonment imposed by Judge Sylvia Rambo of this court. The
required filing fee has been paid. Named as sole respondent is
the Warden at USP-Schuylkill.
On October 27, 1999, Colden pled guilty to three counts of
aiding and abetting interstate travel in furtherance of drug
trafficking, in violation of 18 U.S.C. § 1952(a)(3) and
18 U.S.C. § 2. See United States v. Colden, Crim. Action No.
1:99-cr-0190-SHR (M.D. Pa. 1999). On February 15, 2000, Colden
was sentenced to a 180 month term of imprisonment. Id. No direct appeal was filed.
On February 5, 2001, Colon filed a motion to vacate his
sentence pursuant to 28 U.S.C. § 2255 with this court. Colden v.
United States, Civil Action No. 01-CV-0227 (M.D. Pa. Feb. 5,
2001). On May 7, 2001, Petitioner's motion to vacate was denied.
Id. On June 6, 2001, he filed a notice of appeal from the
denial of his motion to vacate, to the United States Court of
Appeals for the Third Circuit. Colden v. United States, No.
01-2687 (3rd Cir. 2001). On November 6, 2002, the Third
Circuit denied Petitioner's motion for certificate of
appealability because he "failed to make a substantial showing of
the denial of his Sixth Amendment right to effective assistance
of counsel. See 28 U.S.C. Section 2253 (c)(2); Strickland v.
Washington, 466 U.S. 668 (1984)." Id. Petitioner states that
he filed an application for leave to file a second or successive
petition pursuant to 28 U.S.C. §§ 2244(b)(3) and 2255, which was
denied in March, 2005). (Doc. 1, petition).
On July 25, 2005, Petitioner filed the instant petition for
habeas corpus relief. Colden argues that his conviction and
sentence should be vacated under Apprendi which 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." 530 U.S. at 490. He also claims that his conviction and sentence are in violation of the United States
Supreme Court's holding in Blakely v. Washington, 542 U.S.,
124 S.Ct. 2531 (2004).*fn1 Specifically, Petitioner claims he is
entitled to seek § 2241 relief under the § 2255 savings clause
based on the subsequent change in the law as articulated in
Apprendi and Blakely. In his pending petition, Colden
suggests that these cases are intervening changes in the law
which he cannot raise in a section 2255 motion, and as such, a
section 2255 motion is "inadequate or ineffective" to address
Because neither Apprendi nor Blakely apply to cases on
collateral review, the Court will summarily dismiss the petition
pursuant to Rule 4 of the Rules Governing Section 2254 Cases in
the United States District Courts, 28 U.S.C. foll. § 2254 (1977).*fn2
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.*fn3 In re Dorsainvil,
119 F.3d 245, 249 (3d Cir. 1997). 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). Here,
Petitioner is clearly challenging his sentence based on the "new
ruling" announced in Apprendi and Blakely, supra. Thus, his
proper avenue of relief is a section 2255 motion filed in the
district court where he was convicted and sentenced. See section
2255 ¶ 5 (the motion must be filed in "the court which sentenced
A defendant can pursue a § 2241 petition only when he shows
that the remedy under section 2255 would be "inadequate or
ineffective to test the legality of his detention."
28 U.S.C. § 2255 ¶ 5; see also United States v. Brooks, 230 F.3d 643,
647 (3d Cir. 2000). The claimed inadequacy or ineffectiveness of
§ 2255 must be a "limitation of scope or procedure . . .
prevent[ing] a Section 2255 proceeding from affording . . . a
full hearing and adjudication of [a] wrongful detention claim."
Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002)
(citing Cradle v. United States ex rel. Miner, 290 F.3d 536,
538 (3d Cir. 2002) (per curiam)). "It is the inefficacy of the remedy, not a personal inability to utilize it,
that is determinative." Cradle, 290 F.3d at 538 (citing Garris
v. Lindsay, 794 F.2d 722, 727 (D.C. Cir. 1986)); see also
Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001) ("A
prior unsuccessful § 2255 motion or the inability to meet" the
requirements for a second or successive 2255 motion "does not
make § 2255 inadequate or ineffective."). Section 2241 should not
be used as a way of evading the gatekeeping requirements of
section 2255. Brown v. Mendez, 167 F. Supp. 2d 723, 727 (M.D.
Pa. 2001). If a petitioner improperly challenges a federal
conviction or sentence under § 2241, the petition must be
dismissed for lack of jurisdiction. Application of Galante,
437 F.2d 1164, 1165 (3d Cir. 1971).
There are several grounds for dismissing Colden's § 2241
petition. Initially, the Court notes that other than Petitioner's
own suggestion, he has not shown that the Supreme Court intended
Apprendi or Blakely, to be applied retroactively to cases on
collateral appeal. Whether a "new rule" applies retroactively to
final convictions generally depends on whether the rule announced
by the Supreme Court is substantive or procedural. New
substantive rules generally apply retroactively while new
procedural rules generally do not unless they implicate the
fundamental fairness and accuracy of criminal proceedings. See
Schriro v. Summerlin, 124 S. Ct. 2519, 2523 (2004) ("New rules of procedure generally do not apply
retroactively. They do not produce a class of persons convicted
of conduct the law does not make criminal, but merely raise the
possibility that someone convicted with use of the invalidated
procedure might have been acquitted otherwise."); see also
Teague v. Lane, 489 U.S. 288 (1989).
The Third Circuit Court of Appeals has held that Apprendi is
not to be applied retroactively to cases on collateral review.
See United States v. Swinton, 333 F.3d 481, 485-87 (3d Cir.
2003). Although, thus far, there is no Supreme Court or Third
Circuit precedent announcing that Blakely is to be applied
retroactively, i.e. it is available as a means of relief for
cases other than those that were on direct appeal when it was
decided (June 24, 2004), it is clear that Blakely is simply an
application and extension of the new constitutional rule of
criminal procedure the Supreme Court announced in Apprendi v.
New Jersey, 530 U.S. 466 ("`[o]ther than the fact of 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.'"). Thus, as Blakely is a
direct descendant of Apprendi, it too is a procedural rule of
law that is not retroactive to criminal cases on collateral
review. See Green v. United States, No. 04-6564, 2005 WL
237204 (2d Cir. Feb. 2, 2005) (per curiam); McReynolds v. United States, No. 04-2520, 2005 WL 237642, at
*2-3 (7th Cir. Feb. 2, 2005); In re Kirkland, No. 04-3125,
2005 WL 181890 (D.C. Cir. Jan. 27, 2005); In re Anderson, No.
05-10045, 2005 WL 123923, at *3 (11th Cir. Jan. 21, 2005);
Leonard v. United States, 383 F.3d 1146, 1148 (10th Cir. 2004)
(per curiam); Tuttamore v. United States, No. 04-CV-7529,
2005 WL 234368 (N.D. Ohio Feb. 1, 2005); United States v.
Johnson, No. CR. 402CR3, 2005 WL 170708 (E.D. Va. Jan. 21,
2005). In light of this impressive array of precedent, the Court
finds Blakely also does not apply retroactively to cases on
collateral review. Thus, relief via the possible application of
Apprendi and Blakely is unavailable to Colden.*fn4
Second, it is important to note that Petitioner has sought, and
been denied, permission by the Third Circuit Court of Appeals to
file a second § 2255 motion. Section 2255 is not inadequate or
ineffective merely because Colden is unable to meet the
gatekeeping requirements for filing a second § 2255 motion. In
re Dorsainvil, 119 F.3d at 251. Finally, Apprendi and Blakely do not place Petitioner in
the narrow exception of those eligible to file a section 2241
petition as recognized in Dorsainvil, supra. Dorsainvil
requires a precedent that makes the conduct of conviction
non-criminal. The Third Circuit has held that the Dorsainvil
rationale does not permit pursuit of Apprendi claims by way of
§ 2241 petitions:
Unlike the intervening changes in law in In re
Dorsainvil that potentially made the crime for which
that petitioner was convicted non-criminal,
Apprendi dealt with sentencing and did not render
[drug trafficking], the crime for which Okereke was
convicted, not criminal. Accordingly, under our In
re Dorsainvil decision, § 2255 was not inadequate or
ineffective for Okereke to raise his Apprendi
Okereke, 307 F.3d at 120-121. He finds himself in a very
similar situation. Colden pled guilty to aiding and abetting
interstate travel to facilitate the distribution of crack
cocaine. He does not contend that he did not aid or abet in the
furtherance of drug trafficking. Thus, Colden's claims do not
fall within the narrow opening for § 2241 review in the district
of confinement created in Dorsainvil. Since it cannot be said
that § 2255 is inadequate or ineffective to test the legality of
Petitioner's detention or sentence, his § 2241 petition must be
dismissed. Accordingly, Colden's § 2241 petition will be
dismissed, but without prejudice so that he is not foreclosed
from pursuing relief in the future in the event that the Supreme
Court holds that the kind of claim presented here may be considered on collateral
review. See In re Turner, 267 F.3d 225
, 231 (3d Cir. 2001).
An appropriate Order follows. ORDER
NOW, THIS 3rd DAY OF OCTOBER, 2005, for the reasons set
forth in the foregoing Memorandum, IT IS HEREBY ORDERED THAT:
1. The petition for a writ of habeas corpus is
DISMISSED, without prejudice.
2. The ...