The opinion of the court was delivered by: (Judge Kosik)
Luis Carlos Gomez, an inmate confined at U.S.P. Allenwood, Pennsylvania, filed this habeas corpus action on August 10, 2006 pursuant to 28 U.S.C. §2241. Named as respondents are Johnathan Miner, Warden, and Alberto Gonzalez, Attorney General. While petitioner has not submitted the required $5.00 filing fee, we will grant him leave to proceed in forma pauperis in this matter.
In his petition, petitioner states that he was convicted of conspiracy to distribute cocaine in violation of 21 U.S.C. §846 and possession with intent to distribute cocaine in violation of 21 U.S.C. §841 in the United States District Court for the District of Maryland. He states that he was given a life sentence on November 6, 1996. He further states that he appealed the judgment of conviction in the United States Court of Appeals for the Third Circuit.*fn1 He states that he filed a motion to vacate sentence in the United States District Court for the District of Maryland and that he was resentenced to 28 years on December 5, 2001.
In his petition, petitioner requests "release from unlawful judgment and sentence that is void." Specifically, petitioner states:
Warden Johnathan Miner, custodian of the United States Penitentiary Allenwood has Petitioner Luis Carlos Gomez illegally confined in his custody based upon a Judgment and Commitment Order that is Void. The Judgment is invalid due to the fact that it failed to cite the statutory authority under Title 21 U.S.C. §§841(b)(1)(A)(iii), §851(a)(1), (2), (c)(2) and Title 18 U.S.C. §§3559(a)(a), (c)(1)(A)(ii) subsections Warden Johnathan Miner's authority to maintain custody over Petitioner invalidates the legality of the Judgment. Title 21 U.S.C. § §841 and §846 Cited in the Judgment has no legislative penalty provision authorizing Judgment to be entered against Gomez in this action. Thereby, rendering Judgment Void and Imprisonment Illegal. See Hilton v. Braunskill, 481 US 770, 95 L.Ed.2d 724, 107 S.Ct. 2113; Schlanger v. Seamans, 401 US 487, 28 L.Ed.2d 251, 91 S.Ct. 995.
Attached to the petition is the petitioner's "Judgment in a Criminal Case" filed in the United States District Court for the District of Maryland dated November 6, 1996. Also attached to the petition is an affidavit from petitioner's former counsel filed in the United States District Court for the District of Maryland filed on September 24, 2001 addressing his representation of petitioner.
A challenge to a federal criminal defendant's conviction or sentence, as in the instant case, is most appropriately brought as a motion pursuant to 28 U.S.C. §2255 filed in the district court in the district where he was convicted. United States v. Addonizio, 442 U.S. 178, 185 (1979); United States v. Miller, 197 F.3d 644, 648 n.2 (3d Cir. 1999); In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997).*fn2 As a general rule, a §2255 motion "supersedes habeas corpus and provides the exclusive remedy" to one in custody pursuant to a federal court conviction. Strollo v. Alldredge, 463 F.2d 1194, 1195 (3d Cir.)(per curiam), cert. denied, 409 U.S. 1046 (1972). "Section 2241 'is not an additional, alternative or supplemental remedy to 28 U.S.C. §2255.'" Myers v. Booker, 232 F.3d 902 (10th Cir. 2000)(unpublished disposition at 2000 WL1595967)(citing Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)).
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; 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)); see also Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001)("A prior unsuccessful §2255 motion or the inability to meet" the requirements for a second or successive 2255 motion "does not make a §2255 inadequate or ineffective."); Brown v. Mendez, 167 F.Supp.2d 723, 727 (M.D.Pa. 2001). If a petitioner improperly challenges a federal conviction or sentence under §2241, the petition must be dismissed for lack of jurisdiction. Application of Galante, 437 F.2d 1164, 1165 (3d Cir. 1971).
In Cradle v. United States, the Third Circuit emphasized that a §2255 motion is not inadequate or ineffective to test the legality of a federal prisoner's detention, so as to permit the prisoner to seek habeas relief pursuant to §2241, merely because the sentencing court had denied relief, because the one-year statute of limitations had expired, or because the prisoner was unable to meet the stringent gatekeeping requirements of §2255. Rather, the court in Cradle held that the habeas exception recognized in §2255 was merely to make sure that petitioners had a fair opportunity to seek collateral relief, not to enable them to evade procedural requirements. Cradle, 290 F.3d at 538-39.
As stated in Dorsainvil, the availability of the §2241 remedy to challenge a federal conviction is extremely limited. Dorsainvil, 119 F.3d at 250. A prisoner can pursue habeas relief under the safety valve clause of §2255 usually only in a situation where a subsequent statutory interpretation reveals that the prisoner's conduct is no longer criminal to avoid a miscarriage of justice. See Brown v. Mendez, 167 F. Supp. 2d 723, 726-27 (M.D. Pa. 2001).
With the above principles as our guide, it is clear that petitioner cannot raise his claims in the instant §2241 petition. Petitioner is arguing that his judgment and sentence were void because the judgment failed to cite statutory authority. While Petitioner filed a motion to vacate sentence in the United States District Court for the District of Maryland, this does not make the §2255 remedy inadequate or ineffective.
Further, petitioner does not demonstrate the emergence of a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that would negate the criminality of his actions. See 28 U.S.C. § 2244(b)(2)(A); Dorsainvil, 119 F.3d at 251 (in denying motion for certification to file a second Section 2255 petition without prejudice to petitioner filing a Section 2241 habeas corpus petition because passage of a subsequent law may negate the crime of which he was convicted, the Third Circuit Court of Appeals stated in dicta, "[w]e do not suggest that §2255 would be 'inadequate or ineffective' so as to enable a second petitioner to invoke §2241 merely because that ...