United States District Court, M.D. Pennsylvania
December 8, 2005.
SANG LI, Plaintiff,
CRAIG APKER, Defendant.
The opinion of the court was delivered by: A. CAPUTO, District Judge
Presently before the Court are Magistrate Judge Thomas M.
Blewitt's Report and Recommendation (Doc. 4), and Petitioner's
Objections to Magistrate's Report and Recommendation (Doc. 5).
For the reasons set forth below, Petitioner's Objections to the
Magistrate's Report and Recommendation will be overruled and the
Court will adopt the Report and Recommendation. Therefore,
Petitioner's Habeas Corpus Petition will be dismissed for lack of
In April 1997, Following a jury trial in the United States
District Court for the District of Massachusetts, the Petitioner
was convicted of conspiracy to bring aliens into the United
States for purposes of commercial advantage, alien smuggling,
conspiracy to bring aliens into the United States at a place
other than a designated port of entry, and attempting to bring
aliens into the United States at a place other than a designated
port of entry, in violation of 18 U.S.C. § 371 and
8 U.S.C. §§ 1324 (a), et seq. (Doc. 1, Application for Successive § 2255
Motion, at 1.) Petitioner was sentenced on the stated offenses to 144 months
in prison. Petitioner's term of imprisonment was to be followed
by three (3) years of supervision. Id. Petitioner appealed to
the First Circuit Court of Appeals, and he states that the First
Circuit affirmed his conviction and sentence in two separate
decisions. Id. at 2. The Petitioner states that the First
Circuit's second decision affirming his conviction and sentence
was rendered in U.S. v. Li, 206 F. 3d 78 (1st Cir. 2000). Id.
In that appeal, the Petitioner challenged, in part, his sentence
based on the sentencing court's sentencing departures and
enhancements or adjustments to his offense level. Following his
appeals, Petitioner's petition for writ of certiorari to the
United States Supreme Court was denied and Petitioner's
conviction is now final.
Petitioner then filed a 28 U.S.C. § 2255 motion in the United
States District Court of Massachusetts seeking to vacate his
conviction. His motion was denied. Petitioner then applied for a
certificate of appealability with the First Circuit Appeals
Court, which was also denied. Petitioner's application to file a
successive § 2255 petition was also denied. However, as noted,
the First Circuit did not take a position as to whether
Petitioner had relief available if he filed a petition under
28 U.S.C. § 2241 in the District Court. (Doc. 1, Ex. 1.)
The Petitioner then filed the instant Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241, on February 9, 2005.
In his Habeas Petition, Petitioner argues that the Court
improperly imposed a nine-level enhancement pursuant to the
United States Sentencing Guidelines for inhuman treatment (3
levels) and for smuggling 100 or more unlawful aliens (6 levels).
Id. at 2. The Petitioner contends that pursuant to Blakely v.
Washington, 124 S. Ct. 2531 (2004), and U.S. v. Booker,
125 S. Ct. 738 (2005), the Court could not enhance his sentence based on facts which were
not submitted to and found by the jury. Id. Petitioner claims
that his sentence of 144 months imprisonment was, thus, the
result of improper enhancements made by the District Court and
that this amounts to "a denial of his Sixth Amendment right to a
trial by jury." (Doc. 1, Application for Successive § 2255
Motion, at 2). Petitioner further states that § 2255 is
inadequate or ineffective as to his claim, since it is based on
an intervening change in the law, giving him no remedy with the
sentencing court. Petitioner argues that his sentence should
therefore be corrected to reflect a sentence within the
applicable sentencing range for an offense level nine below the
level the sentencing court used.
Where objections to the magistrate judge's report are filed,
the Court must conduct a de novo review of the contested
portions of the report, Sample v. Diecks, 885 F.2d 1099, 1106
n. 3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(C)), provided
the objections are both timely and specific, Goney v. Clark,
749 F.2d 5, 6-7 (3d Cir. 1984). In making its de novo review,
the Court may accept, reject, or modify, in whole or in part, the
factual findings or legal conclusions of the magistrate judge.
See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736,
738 (M.D. Pa. 1993). Although the review is de novo, the
statute permits the Court to rely on the recommendations of the
magistrate judge to the extent it deems proper. See United
States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney,
749 F.2d at 7; Ball v. United States Parole Comm'n,
849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may
be reviewed at a standard determined by the district court. See
Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7. At the very least, the Court should review uncontested
portions for clear error or manifest injustice. See, e.g., Cruz
v. Chater, 990 F. Supp. 375, 376-77 (M.D. Pa. 1998).
Petitioner objects to Magistrate Judge Blewitt's determination
that Petitioner is not entitled to challenge his sentence through
a petition for writ of habeas corpus under 28 U.S.C. § 2241.
Generally, a federal prisoner challenging the validity of his
sentence must make a collateral attack in a proceeding before the
sentencing court pursuant to 28 U.S.C. § 2255. See In re
Dorsainvil, 119 F.3d 245, 248-49 (3d Cir. 1997). However, a
prisoner may challenge his sentence by filing a petition for writ
of habeas corpus under 28 U.S.C. § 2241 where it "appears that
the remedy by motion [under § 2255] is inadequate or ineffective
to test the legality of his detention." 28 U.S.C. § 2255 (2001);
see also Dorsainvil, 119 F.3d at 248-49. In the present case,
Petitioner has filed a habeas petition under § 2241 requesting
that his sentence be found unconstitutional and arguing that the
avenues for relief available to him under § 2255 are inadequate
The Third Circuit Court of Appeals has held that a motion under
§ 2255 is inadequate or ineffective "only if it can be shown that
some limitation of scope or procedure would prevent a Section
2255 proceeding from affording the prisoner a full hearing and
adjudication of his claim of wrongful detention." See Galante,
437 F.2d 1164, 1165 (3d Cir. 1971); see also United States v.
Brooks, 230 F.3d 643, 648 (3d Cir. 2000). A motion is not
inadequate or ineffective where a prisoner is simply unable to
meet § 2255's gate keeping requirements. See Dorsainvil,
119 F.3d at 251. In Dorsainvil, a prisoner who filed an initial petition
challenging his conviction under § 2255, and was denied,
attempted to file a second petition under § 2241 after the United
States Supreme Court ruled that the law he was convicted under
was unconstitutional. See id. at 251. The Third Circuit Court
of Appeals held that § 2255's "inadequate or ineffective"
requirement was met due to the petitioner's "unusual position,"
noting that "[o]ur holding . . . is a narrow one." See id. at
251-52. The Third Circuit Court of Appeals has since noted that
the Dorsainvil exception is limited to situations in which an
intervening change in the law has "potentially made the crime for
which the petitioner was convicted non-criminal." Okereke v.
United States, 307 F.3d 117, 120 (3d Cir. 2002).
In the present case, the intervening changes in law cited by
Petitioner would not decriminalize the conduct with which
Petitioner was charged. The Third Circuit Court of Appeals has
held that, as Apprendi did not render the crime for which the
petitioner was convicted not criminal, it does not fall within
the Dorsainvil exception. See Okereke, 307 F.3d at 120-21;
see also Brown v. Mendez, 167 F. Supp. 2d 723, 728 (M.D. Pa.
As Magistrate Judge Blewitt correctly determined, Petitioner
cannot demonstrate that the avenues for relief available to him
under § 2255 are inadequate or ineffective, and, therefore,
Petitioner is not entitled to challenge his sentence through a
petition for writ of habeas corpus under 28 U.S.C. § 2241. As
such, Petitioner's Habeas Corpus Petition will be dismissed for
lack of jurisdiction.
Petitioner's Objections to the Magistrate's Report and
Recommendation (Doc. 5) will be overruled and the Court will
adopt the Report and Recommendation (Doc. 4). Therefore, Petitioner's Habeas Corpus Petition will be dismissed
for lack of jurisdiction.
An appropriate Order follows. ORDER
NOW, this 8th day of December, 2005, upon review of
Magistrate Judge Thomas M. Blewitt's Report and Recommendation
(Doc. 4) for clear error or manifest injustice, IT IS HEREBY
(1) Petitioner's Objections to the Magistrate's
Report and Recommendation (Doc. 5) are OVERRULED.
(2) The Report and Recommendation (Doc. 4) is
(3) Petitioner's Habeas Corpus Petition is
(4) The Clerk of Court shall mark this case CLOSED.
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