United States District Court, M.D. Pennsylvania
October 4, 2005.
JOHNNIE T. WARREN, Petitioner
JOSEPH SMITH, Warden, Respondent.
The opinion of the court was delivered by: MALCOLM MUIR, Senior District Judge
Johnnie T. Warren, an inmate presently confined in the
Lewisburg United States Penitentiary, Lewisburg, Pennsylvania,
filed, pro se, a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2241. The required filing fee has been paid. The
petition will now be given preliminary consideration pursuant to
Rule 4 of the Rules Governing § 2254 Cases, 28 U.S.C. foll. §
2254, as made applicable to § 2241 cases by Rule 1 thereof. For
the reasons set forth below, the petition will be dismissed
The petitioner was convicted in the United States District
Court for the District of Hawaii, of first-degree murder,
attempted murder and assault with a deadly weapon, in violation of 18 U.S.C. §§ 111 and 113. United States vs. Warren,
984 F.2d 325 (9th Cir. 1993). He was sentenced to a term of
imprisonment of life, without parole, for the first-degree murder
charge; twenty years for the attempted murder charge; and five
years for the assault with a deadly weapon charge. Id.
Warren filed a direct appeal of his conviction to the United
States Court of Appeals for the Ninth Circuit, which reversed the
conviction for murder and affirmed the convictions for attempted
murder and assault. Id. at 329-31.
After a second trial on the murder charge, a jury again found
Warren guilty of first degree murder. United States vs. Warren,
25 F.3d 890 (9th Cir. 1994). The district court sentenced him
to life without parole to run concurrent with his previous
sentences for attempted murder and assault. Id. Warren then
filed a direct appeal to the United States Court of Appeals for
the Ninth Circuit, which affirmed the conviction. Id. Warren
did not challenge his indictment or sentence in any other
Petitioner now turns to this Court seeking relief pursuant to §
2241. In his instant petition, Warren raises the following
grounds for relief: 1. District Court lacked jurisdiction over
first-degree murder in the island of Hawaii.
2. No malice or premeditation was ever shown.
3. Ineffective assistance of counsel at new trial.
(Doc. No. 1, petition).
A federal criminal defendant's conviction/sentence are subject
to collateral attack in a proceeding before the sentencing court
pursuant to 28 U.S.C. § 2255. E.g., United States vs. Addonizio,
442 U.S. 178, 179 (1979). In the instant case, Warren is clearly
maintaining that both his federal conviction violated his
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 vs. 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 vs. 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 vs.
Henman, 843 F.2d 1160, 1162 (9th Cir.), cert. denied,
488 U.S. 982 (1988); Litterio vs. 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 vs.
Lindsay, 794 F.2d 722, 727 (D.C. Cir.) (emphasis added), cert.
denied, 479 U.S. 993 (1986).
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 vs. 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 has also been held that the fact that a petitioner's § 2255
motion may be barred by the one year statute of limitations
applicable to such actions does not render that remedy inadequate
or ineffective. See United States vs. Lurie, 207 F.3d 1075,
1077-78 (8th Cir. 2000); Charles vs. Chandler, 180 F.3d 753, 758
(6th Cir. 1999); Higgs vs. Hobbs, No. CA 99-1113-RV-C, 2000 WL
284277, at *3 (S.D. Ala. Feb. 29, 2000); Ambrosio vs. United States, No. 99CIV. 9626(DC), 94 CIV. 674(DC),
2000 WL 109009, at * 2 (S.D.N.Y. Jan. 28, 2000).
Petitioner fails to provide an explanation as to why he did not
seek a § 2255 motion with the sentencing court. It is the
petitioner's burden to prove that § 2255 would be an inadequate
or ineffective remedy. Reyes-Requena vs. United States,
243 F. 3d 893, 901 (5th Cir. 2001) (citing Pack vs. Yusuff, 218 F.3d 448,
452 (5th Cir. 2000)). Warren has not met this burden.
Additionally, Warren does not meet the narrow Dorsainvil
exception entitling him to § 2241 relief as he has not
demonstrated an intervening change in the law which would affect
the probability of his innocence.*fn1 Thus, the petition for
a writ of habeas corpus under 28 U.S.C. § 2241 will be dismissed.
An appropriate Order follows.
AND NOW, IT IS HEREBY ORDERED THAT:
1. The petition for a writ of habeas corpus is
DISMISSED, without prejudice to any right Warren
may have to file a § 2255 motion in the United States District Court for the
District of Hawaii.
2. The Clerk of Court shall CLOSE this case.
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