The opinion of the court was delivered by: WILLIAM CALDWELL, Senior District Judge
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 www.mied.uscourts.gov. 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 Appx. 440 (6th Cir. 2003) (nonprecedential).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
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 ...