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November 2, 2005.


The opinion of the court was delivered by: WILLIAM CALDWELL, Senior District Judge


I. Introduction.

George C. Obi, an inmate at FCI-Allenwood, White Deer, Pennsylvania, has filed a pro se petition under 28 U.S.C. § 2241, challenging his drug convictions in the United States District Court for the Eastern District of Michigan. He raises the following grounds. First, he was tried and convicted on charges that had been dismissed. Second, the judgment on the "illegal convictions is no more extant," as the response from the Bureau of Prisons to a grievance he filed supposedly shows. Third, no record of the convictions exist.

  We will deny relief because we have no jurisdiction over the first claim and the other two have no merit. II. Background.

  As the petition and the exhibits to the government's opposition brief show, Petitioner was convicted after a jury trial in the United States District Court for the Eastern District of Michigan of conspiracy to possess with intent to distribute and to distribute heroin, and of aiding and abetting the possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) and § 846. See United States v. Obi, No. 2:00-CR-80690 (E.D. Mich.), available at Obi was sentenced to sixty-three months' imprisonment. On direct appeal, his convictions were affirmed. See United States v. Obi, 85 Fed. Appx. 440 (6th Cir. 2003) (nonprecedential). According to the petition, on February 5, 2004, the Supreme Court denied Obi's petition for a writ of certiorari.*fn1 In May 2005, Obi filed a motion under 28 U.S.C. § 2255 in the Eastern District of Michigan. On April 4, 2005, the district court denied the motion. III. Discussion.

  A. The Claim that the Charges Had Been Dismissed.

  The government argues that the 2241 petition must be dismissed for lack of jurisdiction because Petitioner's sole avenue for relief from his convictions is 28 U.S.C. § 2255. We agree as to the first claim because that claim goes to the legality of the criminal proceedings held in the Eastern District of Michigan.

  "[T]he usual avenue for federal prisoners seeking to challenge the legality of their confinement" is a section 2255 motion. In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997). A challenge to either the validity of a conviction or to a sentence must be brought in a section 2255 motion. See United States v. Miller, 197 F.3d 644, 648 n. 2 (3d Cir. 1999); Snead v. Warden, F.C.I. Allenwood, 110 F. Supp. 2d 350, 352 (M.D. Pa. 2000) (Caldwell, J.). Here, the first claim clearly challenges Petitioner's convictions. Hence, 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 him").

  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 inadequacy or ineffectiveness must be "a limitation of scope or procedure . . . prevent[ing] a § 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, 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)). Hence, "[s]ection 2255 is not inadequate or ineffective merely because the sentencing court does not grant relief, the one-year statute of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255." Cradle, 290 F.3d at 539. If a petitioner improperly challenges a federal conviction or sentence under section 2241, the petition must be dismissed for lack of jurisdiction. Application of Galante, 437 F.2d 1164, 1165 (3d Cir. 1971).

  Here, Petitioner argues that his remedy under section 2255 was inadequate or ineffective for the following reasons. First, he claims to be actually innocent. Second, "disingenuous processes" were used to render his 2255 motion ineffective. (Doc., Pet., ¶ 13(b)). Third, there is no record of a conviction against Petitioner "upon which judgment is still in progress." (Id., ¶ 13(c)). Fourth, his 2255 motion was denied without a hearing. (Doc. 12, Reply Br., p. 2).

  None of these reasons is sufficient. First, a claim of actual innocence is not sufficient if the petitioner had a reasonable opportunity to raise his claims, including his claim of actual innocence, in a 2255 motion. See Russell v. Pugh, 143 Fed. Appx. 408, 410 (3d Cir. 2005) (nonprecedential); Abdullah v. Hedrick, 392 F.3d 957, 963 (8th Cir. 2004) (petitioner who had one previous unobstructed procedural opportunity to present his claim cannot invoke section 2241). Compare In re Dorsainvil, supra, 119 F.3d at 249 (in part, section 2255 was inadequate or ineffective to challenge the defendant's conviction when a Supreme Court decision decriminalizing the defendant's conduct under the relevant statute had not been decided and hence had not been available to the defendant when he had filed his 2255 motion). Here, Petitioner does not argue that he could not have presented his claim of actual innocence in his 2255 motion.

  Petitioner's second argument that "disingenuous processes" were used to render his 2255 motion ineffective is unavailing because it is conclusory. Petitioner does not provide facts to support his assertion that "disingenuous processes" were used in his 2255 motion. Cf. United States v. Thomas, 221 F.2d 430, 437 (3d Cir. 2000) (2255 motion containing only vague and conclusory allegations may be disposed of without further investigation by the district court); Mayberry v. Petsock, 821 F.2d 179, 185 (3d Cir. 1987) (bald assertions and conclusory allegations are insufficient in a habeas petition by a state prisoner under 28 U.S.C. § 2254 and "notice pleading is not countenanced in habeas petitions").

  Petitioner's third argument is without merit for two reasons. First, it does not go to any limitation on scope or procedure for deciding 2255 motions. Second, the argument is based on an incorrect reading of a response from the Bureau of Prisons (BOP) to Petitioner's grievance demanding his immediate freedom. The BOP's response was not that Petitioner's sentence had expired but that the judgment in his case had been "executed properly, as you were in exclusive federal custody at the time of sentencing on the basis of the conviction on which the sentence was imposed." (Doc. 12, Ex. E). The BOP's response said nothing about Petitioner having already served until the expiration of his sentence.

  Petitioner's fourth argument is similarly meritless since a decision on the merits of a 2255 motion can be decided without holding a hearing. See United States v. Day, 969 F.2d 39, 41 (3d Cir. 1992) (district court has discretion in deciding to hold a hearing on a 2255 motion and need not hold ...

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