The opinion of the court was delivered by: William W. Caldwell United States District Judge
Petitioner, Rafael Romero, an inmate at Federal Correctional Institution-Schuylkill, files this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his conviction in the United States District Court for the Southern District of New York. Upon Romero's conviction at a jury trial in 1990, he received concurrent sentences of life imprisonment for conspiracy to distribute more than five kilograms of cocaine and conspiracy to murder a federal agent, twenty years for attempted murder of a federal agent, ten years for assault of a federal agent, ten years for possession of approximately one kilogram of cocaine with intent to distribute, and a consecutive sentence of five years for use of a firearm during the course of a narcotics trafficking offense.
We will dismiss Romero's § 2241 petition for lack of jurisdiction because Romero has failed to demonstrate that 28 U.S.C. § 2255 is inadequate or ineffective to challenge the validity of his conviction.
Romero and two other individuals, Albert Rodriguez and Rafael Santos, were convicted of crimes stemming from a narcotics trafficking incident in New York City.*fn1 In 1988, Romero and Rodriguez sold cocaine to two Drug Enforcement Administration confidential informants. During the drug transaction, Santos hid in a nearby closet, armed with a .357 Magnum revolver, in case anything went wrong. When DEA agents raided the apartment, Romero and Rodriguez were apprehended but Santos shot an agent in the face, causing serious injury. The subsequent gun battle injured Santos and one of the DEA informants.
Romero was convicted of the following charges: conspiring to distribute more than five kilograms of cocaine, 21 U.S.C. § 846; possession of approximately one kilogram of cocaine with intent to distribute, 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(B); conspiring to murder a federal officer, 18 U.S.C. § 1117; attempted murder of a federal officer, 18 U.S.C. §§ 1111 and 1114; assaulting a federal officer with a deadly weapon, 18 U.S.C. § 111; and use of a firearm during the course of a drug trafficking offense, 18 U.S.C. § 924(c). The United States Court of Appeals for the Second Circuit affirmed Romero's conviction, Romero v. U.S., 897 F.2d 47 (2d Cir. 1990), cert. denied, 497 U.S. 1010, 110 S.Ct. 3253, 111 L.Ed.2d 762 (1990).
After his conviction was affirmed, Romero petitioned the sentencing court to vacate his sentence pursuant to 28 U.S.C. § 2255 or for a new trial pursuant to Federal Rule of Criminal Procedure 33. The court construed Romero's motion as one under § 2255 and rejected his claim. Romero v. U.S., 92 Civ. 934, 1992 WL 147904, at *1 (S.D.N.Y. June 18, 1992). The Second Circuit affirmed the denial of Romero's motion but explained that the district court should not have treated Romero's Rule 33 motion as a habeas motion under § 2255. See Romero v. U.S., 28 F.3d 267, 268 (2d Cir. 1994). Believing that the Second Circuit's instruction negated any problems he might have with a successive § 2255 motion, Romero filed a second § 2255 motion with the sentencing court. See Romero v. U.S., No. 96 Civ. 4423, 1997 WL 55951 (S.D.N.Y. Feb. 11, 1997). The district court concluded that despite the Second Circuit's instructions regarding the Rule 33 motion, the other claims in Romero's prior motion were considered under § 2255. The court, therefore, treated Romero's newest motion as a successive § 2255 motion and transferred it to the Second Circuit for certification as required for such motions.
Id. at *3. Prior to transferring the motion to the Second Circuit, however, Romero voluntarily dismissed it. Romero v. U.S., No. 96 Civ. 4424, 1997 WL 158367, at *1 (S.D.N.Y. April 2, 1997). In granting the voluntary dismissal, the sentencing court reaffirmed its holding that it had been Romero's second motion. Id.
Romero's current § 2241 petition asserts four grounds for relief. First, based on the Supreme Court's construction of 18 U.S.C. § 924(c)(1) in Bailey v. U.S., 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), Romero is actually innocent of his conviction for use of a firearm during a drug trafficking offense. Second, he is actually innocent of conspiring to murder a federal agent. Third, the Government failed to present ballistics evidence to confirm the type of firearm used to wound the federal agent. Fourth, Petitioner must receive an evidentiary hearing pursuant to Rules 6 and 7 of the Rules Governing Section 2255 Proceedings for the United States District Courts. Finally, the jury instructions for § 924(c)(1) were inadequate because they did not distinguish between "use" and "carry."
Under Rule 1(b)of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C.A. foll. § 2254 (West Supp. 2005), the rules governing petitions under 28 U.S.C. § 2254 can be applied to section 2241 petitions. We will apply Rule 4 of the section 2254 rules to summarily dismiss Romero's § 2241 petition.*fn2
A prisoner seeking to challenge a federal conviction or sentence allegedly in violation of the Constitution typically must file a motion pursuant to 28 U.S.C. § 2255. Okereke v. U.S., 307 F.3d 117, 120 (3d Cir. 2002) (citing Davis v. U.S., 417 U.S. 333, 343 (1974)). The prisoner must use § 2255 and file the motion in the sentencing court "unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of [petitioner's] detention." 28 U.S.C. § 2255 ¶ 7. If the petitioner's motion fits within the unusual circumstances covered by this "safety valve" language, the petitioner may instead proceed under 28 U.S.C. § 2241. In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). The Third Circuit has narrowly interpreted the safety valve language, explaining: "It is the inefficacy of the remedy, not the personal inability to use it, that is determinative." Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). Therefore, the petitioner may not proceed under § 2241 by using the safety valve language "merely because th[e] petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255." Dorsainvil, 119 F.3d at 251. Instead, "A § 2255 motion would be inadequate or ineffective only if the petitioner can show that a limitation of scope or procedure would prevent a § 2255 proceeding from affording him a full hearing and adjudication of his wrongful detention claim." Okereke, 307 F.3d at 120 (citing Cradle 290 F.3d at 538).
The Third Circuit has permitted a petitioner to use the safety valve language to proceed under § 2241 only in unusual situations. In In re Dorsainvil, the petitioner, convicted of violating 18 U.S.C. § 924(c)(1), was first denied § 2255 relief for ineffective assistance of counsel and double jeopardy. 119 F.3d at 246. Between petitioner's first and second petitions, however, the Supreme Court decided Bailey v. U.S, construing § 924(c)(1) so as to potentially negate the criminality of petitioner's conduct. In Bailey, the Court concluded that a conviction for "use" of a firearm under § 924(c)(1) required evidence showing active employment of the firearm. Bailey, 516 U.S. at 143.*fn3 This intervening construction of § 924(c)(1) potentially rendered the Dorsainvil petitioner's conduct non-criminal. ...