The opinion of the court was delivered by: Judge Caldwell
On March 10, 2006, Petitioner, Donald Morabito, a state prisoner currently housed at the Cresson State Correctional Institution ("SCI-Cresson"),*fn1 filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his conviction in the Court of Common Pleas of Philadelphia County. Morabito proceeds pro se and has filed an application to proceed in forma pauperis. A discovery motion is pending, and Petitioner recently filed an amendment to his petition. (See Doc. 5).
The petition cannot be considered under section 2241 since it is a challenge to Petitioner's conviction. Because Petitioner requests in the alternative that it be considered under 28 U.S.C. § 2254, we will transfer the petition to the United States District Court for the Eastern District of Pennsylvania, the federal judicial district where the state court of conviction is located.
According to the petition, Morabito was arrested by the Philadelphia police on May 17, 2004. Petitioner allegedly defrauded several bidders who paid for computers offered by Morabito on E-Bay but which were never delivered. In January 2005, Petitioner was arraigned in absentia in the Court of Common Pleas of Philadelphia County. On September 27, 2005, a jury found Morabito guilty of: four counts of theft by deception (18 Pa.C.S. § 3927); four counts of theft by failure to make required disposition of funds (18 Pa. C.S. § 3927); and four counts of unlawful use of a computer (18 Pa. C.S. § 7611). Petitioner was sentenced on December 14, 2005, to a term of five to ten years' imprisonment plus four years' probation, along with restitution in the amount of $11,396.
In the instant § 2241 petition, Morabito raises the following claims: (1) he was improperly arraigned in absentia; and
(2) the criminal informations lodged against him were unconstitutionally vague and thus divested the trial court of jurisdiction to try and sentence him on the offenses.
He also argues that if the Court does not have jurisdiction over his § 2241 petition, "as an alternative, petitioner argues that the Court has jurisdiction under 28 U.S.C. Section 2254." (Doc. 5, Petitioner's Amendment and Supplement to His 28 U.S.C. Section 2241 Petition).
Morabito's claims attack the validity of his conviction and sentence. He has filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Section 2241 provides jurisdiction to district courts to issue writs of habeas corpus in response to a petition from a state or federal prisoner who is in custody in violation of the Constitution or laws or treaties of the United States. Section 2254 provides jurisdiction to district courts to issue writs of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court ... on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
Woodard v. Diguglielmo, Civ. No. 05-1109, 2006 WL 293435 *3 (E.D. Pa. Feb. 3, 2006). Although seemingly similar, § 2241 is not an alternative to 28 U.S.C. § 2254. See Felker v. Turpin, 518 U.S. 651, 662, 116 S.Ct. 2333, 135 L.Ed.2d 827 ("authority to grant habeas corpus relief to state prisoners is limited by 28 U.S.C. § 2254, which specifies the conditions under which such relief may be granted to a person in custody pursuant to the judgment of a state court"). When challenging the validity, and not the execution, of his sentence a state prisoner must rely on the more specific provisions of § 2254 and may not proceed under § 2241. Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001). Thus, Morabito's proper avenue of relief is a section 2254 petition, filed in the district court of his place of conviction, unless he can show that the remedy under section 2254 would be "inadequate or ineffective to test the legality of his detention." See 28 U.S.C. § 2255; In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997). Section 2241 should not be used as a way of evading the gatekeeping provisions of section 2255. Id. at 251.
When a petitioner attempts to seek relief from the imposition of sentence under 28 U.S.C. § 2241, the habeas petition is dismissed for ...