The opinion of the court was delivered by: CHRISTOPHER CONNER, District Judge
Presently before the court is a petition for writ of habeas
corpus (Doc. 1), filed by Ronald Whethers ("Whethers"), pursuant
to 28 U.S.C. § 2241. For the reasons that follow, the petition
will be dismissed for lack of jurisdiction.
In April 1996, after a jury trial, Whethers was convicted of
money laundering and conspiracy to distribute and to possess with
intent to distribute cocaine. See United States v. Whethers,
71 Fed. Appx. 144 (3d Cir. 2003). The quantity of drugs involved
was not an issue submitted to the jury. At sentencing the
district court found, by a preponderance of the evidence, that
more than 150 kilograms of cocaine was involved, and imposed the
statutory maximum sentence of life imprisonment. See
21 U.S.C. § 841(b)(1)(A).
The United States Court of Appeals for the Third Circuit
affirmed the conviction and sentence, see United States v.
Whethers, 159 F.3d 1354 (3d Cir. 1998), and the United States
Supreme Court denied a petition for writ of certiorari. See
United States v. Whethers, 525 U.S. 1126 (1999). Whethers then
filed a motion to vacate pursuant to 28 U.S.C. § 2255, claiming that his conviction
and sentence violated Apprendi v. New Jersey, 530 U.S. 466
(2000). That motion was denied, and the Court of Appeals for the
Third Circuit affirmed, finding that Apprendi did not apply
retroactively to Whethers' motion to vacate. See Whethers,
71 Fed.Appx. 144.
The instant § 2241 petition was filed on June 14,
2005.*fn1 It avers that Whethers' due process rights were
violated because his sentence was based, in part, upon factual
findings made by a judge rather than by a jury and upon a
"preponderance of the evidence" standard rather than a "beyond
reasonable doubt" standard. (Doc. 1 at 3).
A challenge to the legality of a federal conviction may only be
brought in the district of sentencing, and only via a § 2255
motion. Accordingly, a challenge brought pursuant to a petition
for habeas corpus must be dismissed for lack of jurisdiction. In
re Galante, 437 F.2d 1164, 1165 (3d Cir. 1971) (per curiam),
cited with approval in Cradle v. United States ex rel. Miner,
290 F.3d 536, 538 (3d Cir. 2002) (per curiam); see also
Strollo v. Alldredge, 463 F.2d 1194, 1195 (3d Cir. 1972)
(stating that, as a general rule, a § 2255 motion "supersedes
habeas corpus and provides the exclusive remedy"). A narrow
exception to this jurisdictional limitation applies when a motion
made under § 2255 would be "inadequate or ineffective to test the legality of [a petitioner's] detention."
See 28 U.S.C. § 2255. In such a circumstance the conviction may
be challenged via a § 2241 petition.
In the instant matter, Whethers contests the validity of his
federal conviction, and hence his request for relief must be
brought pursuant to a § 2255 motion rather than the § 2241
petition sub judice. Nevertheless, Whethers contends that §
2255 is "inadequate or ineffective" because Apprendi did not
apply retroactively and could not be used to satisfy the
requirements for a second or successive motion. While Whethers is
correct that Apprendi does not apply retroactively to cases on
collateral review and may not satisfy the gatekeeping
requirements for filing a second or successive motion, see
Okereke v. United States, 307 F.3d 117, 120-21 (3d Cir. 2001));
see also United States v. Swinton, 333 F.3d 481, 485 (3d Cir.
2003) (holding that Apprendi is not retroactive to cases on
collateral review), this does not establish that the remedy is
inadequate or ineffective to test the legality of his conviction
and sentence. Indeed, the Third Circuit has specifically held
that § 2255 is not "inadequate or ineffective" for prisoners
seeking to raise an Apprendi claim in a § 2241 proceeding.
Okereke, 307 F.3d at 120-21. III. Conclusion
Because Whethers has not established the inadequacy or
ineffectiveness of a § 2255 motion to challenge his conviction,
his petition for writ of habeas corpus will be dismissed for lack
of jurisdiction. See Galante, 437 F.2d at 1165. An
appropriate order will issue.*fn2 ORDER
AND NOW, this 5th day of October, 2005, upon consideration of
the petition for writ of habeas corpus (Doc. 1), and for the
reasons set forth in the accompanying memorandum, it is hereby
1. The petition for writ of habeas corpus (Doc. 1) is
DISMISSED for lack of jurisdiction. See
28 U.S.C. § 2255; Cradle v. United States ex rel. Miner,
290 F.3d ...