The opinion of the court was delivered by: JAMES McCLURE JR., District Judge
Gerald Sawyer ("Petitioner"), an inmate presently confined at
the Canaan Federal Prison Camp, Waymart, Pennsylvania
("FPC-Canaan"), filed this pro se petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241. The petition is accompanied
by an in forma pauperis application. Named as Respondent is
FPC-Canaan Warden Cameron Lindsay.
Petitioner states that he was convicted of conspiracy to straw
purchase firearms, making false statements to a firearms dealer,
and possession of a firearm by a convicted felon in the United
States District Court for the Eastern District of Pennsylvania. Sawyer was sentenced to a 120 month term of
incarceration on April 5, 2002. There is no indication that the
Petitioner filed a direct appeal or sought collateral relief via
a 28 U.S.C. § 2255 action.
Petitioner's present action claims entitlement to federal
habeas corpus relief on the grounds that his federal sentence is
excessive because it was imposed when the United States
Sentencing Guidelines ("Sentencing Guidelines") were mandatory.
Sawyer's argument is premised on the United States Supreme
Court's recent holding in United States v. Booker,
125 S. Ct. 738 (2005). Booker reaffirmed Apprendi v. New Jersey,
530 U.S. 466 (2000),*fn1 adding that the Sentencing Guidelines
were not mandates but advisory only. The Petitioner states that
he "sincerely believes that his sentence would have been
different had the Guidelines not been mandatory for the
Sentencing Court." Record document no. 1, p. 4. As relief, he
requests that the sentencing court be directed to reconsider his
sentence in light of Booker. Sawyer further indicates that his
claim is properly raised under § 2241 because his § 2255 remedy
is inadequate or ineffective. Discussion
Habeas corpus petitions brought under § 2241 are subject to
summary dismissal pursuant to Rule 4 ("Preliminary Consideration
by the Judge") of the Rules Governing Section 2254 Cases in the
United States District Courts, 28 U.S.C. foll. § 2254 (1977)
(applicable to § 2241 petitions under Rule 1(b)). See, e.g.,
Patton v. Fenton, 491 F. Supp. 156, 158-59 (M.D. Pa. 1979).
Rule 4 provides in pertinent part: "If it plainly appears from
the face of the petition and any exhibits annexed to it that the
petitioner is not entitled to relief in the district court, the
judge shall make an order for its summary dismissal and cause the
petitioner to be notified." A petition may be dismissed without
review of an answer "when the petition is frivolous, or obviously
lacking in merit, or where . . . the necessary facts can be
determined from the petition itself. . . ." Allen v. Perini,
424 F.2d 134, 141 (6th Cir.), cert. denied, 400 U.S. 906
(1970). Accord Love v. Butler, 952 F.2d 10, 15 (1st Cir. 1991).
A federal criminal defendant's sentence is subject to
collateral attack in a proceeding before the sentencing court
pursuant to 28 U.S.C. § 2255. E.g., United States v.
Addonizio, 442 U.S. 178, 179 (1979). 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). 28 U.S.C. § 2255; Davis v. United States,
417 U.S. 333, 343 (1974); Hill v. United States, 368 U.S. 424, 427
(1962); In re Dorsainvil, 119 F.3d 245, 249 (3rd Cir.
1997); In re Vial, 115 F.3d 1192, 1194 (4th Cir 1997);
Application of Galante, 437, F.2d 1164, 1165 (3rd Cir.
1971). Sawyer's instant action is seeking reconsideration of his
federal sentence which was imposed by the Eastern District of
In ruling on the issue of inadequate or ineffective, the
appellate courts have instructed that a collateral relief motion
is inadequate or ineffective only where it is established that
some limitation of scope or procedure would prevent the
collateral remedy from affording the prisoner a full hearing and
adjudication of his claim of wrongful detention. See Galante,
437 F.2d at 1165 (3d Cir. 1971) (quoting United States ex rel.
Leguillou v. Davis, 212 F. 2d 681, 684 (3d Cir. 1954)). It has
also been established that the burden is on the habeas petitioner
to allege or demonstrate inadequacy or ineffectiveness. See
id.; Cagle v. Ciccone, 368 F.2d 183, 184 (8th Cir 1966).
Furthermore, prior unsuccessful collateral relief motions filed
in the sentencing court have been held to be insufficient in and
of themselves to show that the motion remedy is inadequate and ineffective. Tripati v.
Herman, 843 F.2d 1169, 1162 (9th Cir.), cert. denied,
488 U.S. 982 (1988); Litterio v. 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 v. Lindsay, 794 F.2d 722, 727 (D.C. Cir.), 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 § 2255 "supersedes habeas
corpus and provides the exclusive remedy." Strollo v.
Alldredge, 462 F.2d 1194, 1195 (3d Cir.) (per curiam), cert.
denied, 409 U.S. 1046 (1972).
Triestman v. United States, 124 F.3d 361 (2nd Cir. 1997),
and Dorsainvil also addressed what circumstances make a
collateral relief remedy inadequate and ineffective. The
legislative limitations placed on collateral relief proceedings
simply do not render the remedy inadequate or ineffective so as
to authorize pursuit of a habeas corpus petition in this court.
United States v. Brooks, 230 F.3d 643, 647 (3rd Cir. 2000);
Dorsainvil, 119 F.3d at 251. "To hold otherwise would simply
effect a transfer of forum for the adjudication of successive
challenges to the validity of a conviction." Kennemore v. True,
Civil No. 98-1175, slip op. at 6. (M.D. Pa. July 28, 1998)
(Conaboy, J.). Both the Triestman and Dorsainvil courts held that a § 2255
motion was only "inadequate and ineffective" (thus allowing a
petitioner to bring a § 2241 habeas corpus action) where the
denial of a habeas action would raise serious constitutional
issues. Triestman, 124 F.3d at 377; Dorsainvil,
119 F.3d at 249. The serious constitutional issue was that a change in
substantive law rendered the conduct for which petitioner was
convicted no longer criminal. Triestman, 124 F.3d at 366;
Dorsainvil, 119 F.3d at 251. Thus, these cases set a high bar
for what a court will consider a serious constitutional issue
sufficient to allow a petitioner to bring a § 2241 petition to
challenge a conviction or sentence.
Sawyer's present claim does not fall within the narrow
exception created by Dorsainvil and Triestman. Specifically,
there is no allegation by Petitioner that his claim is based on
any newly discovered evidence. The Petitioner has also not
presented any facts to show that the denial of his habeas action
would raise serious constitutional issues.
Unlike Dorsainvil, Sawyer's argument for relief is not
premised on any intervening change in substantive law that would
negate the criminal nature of his conduct with respect to his
federal conviction. Fundamental to Dorsainvil was the fact that
the petitioner may actually be innocent of the crime charged. In
this case, Petitioner has failed to present any allegations
suggesting that he was not involved in the alleged underlying criminal activity. Rather, his claims are
solely based on a sentencing related issue, namely, that his
sentence may have been more lenient if imposed after the Booker
decision. Consequently, it is apparent that Sawyer's request for
relief has nothing to do with the actual question of Petitioner's
guilt. It is additionally recognized that in Tyler v. Cain,
533 U.S. 656, 663 (2001),*fn2 the Supreme Court established that
a new rule of law is not made retroactive to cases on
collateral review unless the Court itself holds it to be
Furthermore, the Court of Appeals for the Third Circuit
recently held that the Booker decision does not have
retroactive effect. See Lloyd v. United States, 407 F. 3d 608
615-16 (3d Cir. 2005, cert. denied, 126 S.Ct. 288 (Oct. 3,
2005). Since Booker cannot presently be applied retroactively
to cases on collateral review, this Court is precluded from
considering any such claim by Sawyer. See United States v.
Pinkston, 153 F. Supp. 2d 557
(M.D. Pa. 2001). Consequently, since Sawyer has not established that his remedy
under § 2255 is inadequate or ineffective under the standards
announced in Dorsainvil and Triestman, his petition for writ
of habeas corpus will be dismissed without prejudice. Petitioner,
if he so chooses, may reassert his present claim through a § 2255
motion filed with the sentencing court. In the event that
Petitioner has previously filed a § 2255 motion, he may submit an
application to the Third Circuit seeking leave to file a second
or successive § 2255 motion. Consequently,
IT IS THEREFORE ORDERED THAT:
1. Petitioner is granted leave to proceed in forma
pauperis for the ...