The opinion of the court was delivered by: YVETTE KANE, District Judge
John Wayne White ("White"), an inmate housed at the Federal
Correctional Institution at Schuylkill, filed this pro se
petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241, challenging the validity of a 1996 conviction in the United
States Court for the Western District of North Carolina. (Docs.
1, 2). The petition has been given preliminary consideration
pursuant to Rule 4 of the Rules Governing Section 2254 Cases in
the United States District Courts, 28 U.S.C. § 2254
(1977),*fn1 as it is the duty of the Court to screen out
frivolous applications and eliminate the burden that would be
placed on the respondent by ordering an unnecessary answer.
Allen v. Perini, 424 F.2d 134, 141 (6th Cir.
1970).*fn2 For the reasons outlined below, it is appropriate
to deny the petition at this preliminary stage of the
In 1996, White was convicted in the United States District
Court for the Western District of North Carolina of "conspiracy to possess with intent to
distribute and to distribute unspecified quantities of heroin,
cocaine base, cocaine powder and mariguana [sic], all in
violation of 21 U.S.C. §§ 841(a)(1) and 846." According to White,
"an information pursuant to 21 U.S.C. § 841(b) was filed . . .
asserting that the amount of heroin involved in the conspiracy
was in excess of 1 kilogram; that the amount of cocaine base . . .
was in excess of 50 grams; that the amount of cocaine powder . . .
was in excess of 100 kilograms." (Doc. 1, p. 2). He
represents that he was convicted under 21 U.S.C. §§ 841(a)(1),
853. (Doc. 2, p. 2).
White then pursued a direct appeal with the Fourth Circuit
Court of Appeals, and his conviction was affirmed. U.S. v.
Rhynes, 196 F.3d 207
(4th Cir. 1999). In addressing the issue of
the amount of drugs attributable to White, as well as his
co-conspirators, and the applicable sentencing guidelines, the
Fourth Circuit found as follows:
The penalties for all such [single-drug] conspiracies
are determined by § 841(b). But this section does not
set any concrete, maximum sentence for all violations
involving a particular drug; instead, the maximum
sentences vary with the type and amount of drug in
question. Accordingly, to determine the applicable
maximum sentence for any defendant, the district
court first had to determine how much of any drug
could be attributed to that defendant. See
Edwards, 523 U.S. at ___-___, 118 S.Ct. at 1477-78
(approving sentences set "within the statutory limits
applicable to a cocaine-only conspiracy, given the
quantities of that drug attributed to each
petitioner"); Barnes, 158 F.3d at 666-67 (applying
Orozco-Prada analysis based on amount of drugs
attributable to each defendant); Dale,
178 F.3d at 433 (statutory maximum sentences depend on drug
amounts disclosed by "the facts of this case"). As it
must in any drug conspiracy case, the district court
made such a determination here.
The Presentence Investigation Reports for the
defendants, which the district court adopted,
attributed drugs of the following amounts and types
to each defendant: (a) Willie Rhynes: 3.63 kg. of
marijuana, 70.5 kg. of cocaine, 6060.49 grams of
heroin, and 9.29 kg. of cocaine base; (b) Michael
Rhynes: 125.61 kg. of cocaine, 528.35 grams of
heroin, and 13.9 kg. of cocaine base; (c) Theodore
Adams: .01 kg. of marijuana, 1056.7 grams of cocaine,
107.9 grams of heroin, and 24 oz. of cocaine base;
(d) Purvis Gormley: 212.62 grams of cocaine, 56.7 grams of heroin, and
141.75 kg. of cocaine base; (e) John White: 1.24 kg.
of heroin; (f) Lester McCoy: .5 kg. of cocaine, 8
grams of heroin, and 500 grams of cocaine base; and
(g) Alexander Adams: 1.25 kg. of marijuana, 18.77 kg.
of cocaine, 2.01 kg. of heroin, and 10.32 kg. of
However, the district court did not determine whether
the sentences it imposed exceeded the statutory
maximum applicable to the least-punished conspiracy
of which each defendant might have been convicted.
The following are the maximums for the least-serious,
single-drug conspiracy for which the individual
defendants would have been eligible: (a) Willie
Rhynes: 10 years under § 841(b)(1)(D), based on 3.63
kg. of marijuana and a prior felony drug conviction;
(b) Michael Rhynes: 40 years under § 841(b)(1)(B),
based on 528.35 grams of heroin; (c) Theodore Adams:
10 years under § 841(b)(1)(D), based on 01 kg. of
marijuana and a prior felony drug conviction; (d)
Purvis Gormley: 30 years under § 841(b)(1)(C), based
on 56.7 grams of heroin and a prior felony drug
conviction; (e) John White: life, as all attributable
drug amounts fall under § 841(b)(1)(A); (f) Lester
McCoy: 30 years under § 841(b)(1)(C), based on 8
grams of heroin and a prior felony drug conviction;
and (g) Alexander Adams: 5 years under §
841(b)(1)(D), based on 1.25 kg. of marijuana.
The following sentences were actually imposed on
Count I: (a) Willie Rhynes: life; (b) Michael Rhynes:
360 months; (c) Theodore Adams: life; (d) Purvis
Gormley: 292 months; (e) John White: 292 months; (f)
Lester McCoy: 262 months; and (g) Alexander Adams:
U.S. v. Rhynes 196 F.3d 207
, 239 (4th Cir. 1999).
Some years later, White filed a motion to vacate, set aside or
correct sentence under 28 U.S.C. § 2255, asserting ineffective
assistance of counsel claims and Fifth and Sixth Amendment
violations. (Doc. 2, p. 3). The motion was denied on January 5,
2004. He filed a motion in the Fourth Circuit Court of Appeals,
pursuant to 28 U.S.C. § 2244, for an order authorizing the
district court to consider a second or successive application for
relief under 28 U.S.C. § 2255. The motion was denied on September
White then filed the present petition pursuant to
28 U.S.C. § 2241 claiming that § 2255 was inadequate and ineffective to test the legality of his detention.
He cites to In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997), and
Apprendi v. New Jersey, 530 U.S. 466 (2000) in arguing that his
conviction was obtained with facts "by a standard lower then
[sic] `beyond a reasonable doubt.'" (Doc .1, p. 8). He complains
that each element of the crime was not presented to the jury;
specifically, the jury did not find beyond a reasonable doubt
what amount of drugs were attributable to him. He also argues
that he "may seek federal habeas corpus if he had no reasonable
opportunity to obtain earlier judicial correction of a
fundamental defect in his conviction or sentence because the law
change [sic] after the first section 2255 motion." (Doc. 1, p.
It is well-established that "[m]otions pursuant to
28 U.S.C. § 2255 are the presumptive means by which federal prisoners can
challenge their convictions or sentences that are allegedly in
violation of the Constitution." Okereke v. United States,
307 F.3d 117 (3d Cir. 2002), citing Davis v. United States,
417 U.S. 333, 342 (1974); see In re Dorsainvil, 119 F.3d 245 (3d
Cir. 1997). Claims may not be raised in a § 2241 petition except
in "unusual situation[s]" where the remedy by motion under § 2255
would be inadequate or ineffective." 28 U.S.C. § 2255; see
Dorsainvil, 119 F.3d at 251-52. Importantly, § 2255 is not
"inadequate or ineffective" merely because the sentencing court
has previously denied relief or because the gate keeping
provisions of § 2255 make it difficult to prosecute successive
motions. See id. at 251. Nor do the legislative limitations,
such as the statute of limitations or gate keeping provisions,
placed on § 2255 proceedings 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;
Triestman v. United States, 124 F.3d 361 (2nd Cir. 1997).
Both the Triestman and Dorsainvil courts held that a § 2255 motion was only "inadequate and ineffective" and allowed 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.
Based on the above-quoted appellate decision, it is clear that
despite White's claims to the contrary, his sentencing issues
were addressed on appeal. White then had the opportunity to raise
any such issues in his § 2255 motion. He fails to recognize that
prior unsuccessful § 2255 motions filed in the sentencing court
have been held to be insufficient in and of themselves to show
that the remedy is inadequate and ineffective. Tripati v.
Herman, 843 F.2d 1160, 1162 (9th Cir. 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. 1986). The Third Circuit Court of Appeals has
held that, as to issues cognizable by the sentencing court under
§ 2255, a § 2255 "supersedes habeas corpus and provided the
exclusive remedy." Strollo v. Alldredge, 462 F.2d 1194, 1195
(3d Cir. 1972) (per cuiram). There is no indication that the §
2255 remedy was inadequate or ineffective to address White's
White fares no better in arguing that he may seek federal
habeas corpus relief if he had no reasonable opportunity to
obtain earlier relief because the law changed after his first
2255 motion. In Blakely, the Supreme Court announced a rule
that the Fifth and Sixth Amendments require that any fact that
increases the punishment for an offense, regardless of whether
that punishment falls below the statutory maximum for the offense, must be found by the jury,
and beyond a reasonable doubt. ___ U.S. ___, 124 S.Ct. 2531,
2537. The Court relied on its previous decisions in Apprendi v.
New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona,
536 U.S. 584 (2002). The hurdle faced by White is that generally the
Supreme Court does not apply new rules of constitutional
procedure to cases that have become final before the rule was
announced. See Schriro v. Summerlin, ___ U.S. ___,
124 S.Ct. 2519, 2523 (2004). Every Court of Appeals to have addressed the
issue thus far has concluded that the Supreme Court's sentencing
decisions do not apply retroactively to cases on collateral
review. See United States v. Price, 400 F.3d 844 (10th
Cir. 2005); Bey v. United States, 399 F.3d 1266 (10th Cir.
2005); Humphress v. United States, 398F.3d 855 (6th Cir.
2005); Varela v. United States, 400 F.3d 864 (11th Cir.
2005); Green v. United States, 397 F.3d 101 (2d Cir. 2005)
(per curiam); McReynolds v. United States, 397 F.3d 479
(7th Cir. 2005). This prohibition applies here. White's
conviction became final on October 26, 1999. Apprendi was
decided in 2000, Ring was decided in 2002, and the Blakely
decision was handed down in 2004.
Even if White could seek relief in connection with an otherwise
final conviction on the basis of any of the Supreme Court cases
upon which he relies, a § 2241 petition in the district of
confinement would not be the appropriate procedural mechanism for
raising the issue. In White's case, he must obtain leave of the
Court of Appeals for the Fourth Circuit to file a § 2255 motion
in the sentencing court. As noted above, White has unsuccessfully
filed a § 2255 motion with the sentencing court and, on at least
one occasion, the Fourth Circuit has denied a motion for
authorization to file a second or successive § 2255 motion
pursuant to 28 U.S.C. § 2244. Section 2255 is not inadequate or
ineffective merely because Petitioner is unable to meet the gate
keeping requirements for filing a second § 2255 motion. III. Order.
AND NOW, this 28th day of November 2005, IT IS HEREBY
1. The Petition for Writ of Habeas Corpus is DENIED
2. Petitioner's ...