The opinion of the court was delivered by: James F. McClure, Jr. United States District Judge
(Magistrate Judge Smyser)
On December 22, 2006, petitioner Marc Pierre Hall, a federal prisoner, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner had previously been convicted in the Western District of North Carolina of one count of conspiracy to possess with intent to distribute cocaine and cocaine base within 1000 feet of a school or playground in violation 21 U.S.C. § 846, two counts of using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) and (2), and one count of damaging or destroying by means of fire or an explosive any building used in or affecting interstate commerce in violation of 18 U.S.C. § 844(I). In his petition, he asserts that: 1) the Supreme Court's rulings in Bailey v. United States, 516 U.S. 137 (1995) and Jones v. United States, 529 U.S. 848 (2000) render 18 U.S.C. § 844(I) a nonexistent federal crime under the "active employment" criteria; 2) 21 U.S.C. §§ 841(a) and (b) was an ineffective law at the time of trial; and 3) his arrest was without probable cause. (Rec. Doc. No. 1, at 6-8.)
The matter was initially referred to United States Magistrate Judge J. Andrew Smyser. On April 11, 2007, the magistrate judge filed a fourteen-page report recommending that the petition be denied. (Rec. Doc. No. 37.) On April 23, 2007, petitioner filed objections to the magistrate judge's report and recommendation. (Rec. Doc. No. 38.) On May 8, 2007, respondent filed his brief in opposition to plaintiff's objections (Rec. Doc. No. 40). Thus, the matter is ripe for our review. Now, for the following reasons, we will adopt the magistrate judge's report and recommendation in full and dismiss the petition.
A district court reviews de novo those portions of a magistrate judge's report and recommendation to which a party objects. Rule 72.3 of the Local Rules of the Middle District of Pennsylvania. The court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.
Because petitioner is a federal prisoner who has brought a challenge to his conviction under 28 U.S.C. § 2241, he must satisfy the safety-valve language in § 2255, which states that a federal prisoner who is challenging his conviction or sentence under § 2241 can only do so if § 2255 is "inadequate or ineffective." We note that § 2255 is "inadequate or ineffective" only where the petitioner demonstrates that some limitation of scope or procedure would prevent a § 2255 motion from affording him a full hearing and adjudication of his wrongful detention claim. Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). Furthermore, the simple fact that a § 2255 has already been denied and the petitioner is unable to bring a second or successive § 2255 motion does not render that section "inadequate or ineffective." In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997).
The magistrate judge concluded that with respect to petitioner's second argument (that 21 U.S.C. §§ 841(a) and (b) was an ineffective law at the time of trial) and his third argument (that his arrest was without probable cause), petitioner had unobstructed procedural opportunity to raise these claims on direct appeal and in his first § 2255. Therefore, there is no basis to conclude that § 2255 is "inadequate or ineffective" with respect to these claims. Although not entirely clear, it appears that the petitioner has objected to this portion of the magistrate judge's report. Specifically, the petitioner argues that he is not challenging his conviction and sentence. (Rec. Doc. No 38, at 3.) Rather, he argues that his petition is "a new suit for ones [sic] liberty under the enforcement of the sentence" rather than a challenge to the conviction and sentence itself. (Id.) Presumably, the purpose of this argument is that if not challenging his conviction or sentence, but rather the execution of his sentence, he does not have to show that § 2255 is "inadequate or ineffective" in order to be permitted to bring a § 2241 petition. Still, because we disagree, and conclude that petitioner is clearly challenging his conviction and sentence, we will overrule petitioner's objection.
As to the petitioner's claim under Bailey, the magistrate judge concluded that petitioner raised this claim on direct appeal and in his first § 2255 motion,and it was rejected both times. Therefore, there is again no basis to argue that § 2255 is "inadequate or ineffective." Petitioner has not objected to this portion of the magistrate judge's analysis. As a preliminary matter, we note that petitioner argues in his petition that Bailey renders 18 U.S.C. 844(I) a nonexistent federal crime under the "active employment" criteria. In Bailey, the Supreme Court held that 18 U.S.C. § 924(c)(1), which imposes a 5-year minimum term of imprisonment upon a person who "during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm," requires a showing that the firearm was actively employed or an operative factor in relation to the predicate offense. 516 U.S. at 143. Thus, because Bailey involved § 924(c)(1), and petitioner is relying on Bailey to challenge his conviction under § 844(I), it appears he is mistaken in his reliance on this case. Still, because petitioner was convicted of § 924(c)(1) as well, we will interpret this challenge as one to his conviction under that statute. Furthermore, we note that the Third Circuit held in In re Dorsainvil that a petitioner who was convicted and filed his first § 2255 motion before Bailey was decided may file a § 2241 petition because a § 2255 motion would be "inadequate or ineffective." 119 F.3d at 251. Finally, we note that we agree with the magistrate judge's conclusion that petitioner is not in the same position as the individual in In re Dorsainvil. Bailey was decided prior to petitioner's conviction and petitioner presented his argument based on Bailey on direct appeal and in his first § 2255. Therefore, § 2255 is not "inadequate or ineffective" in this situation and we will deny his claim based on Bailey.
Finally, as to petitioner's argument under Jones, the magistrate judge concluded that petitioner raised this claim in a previous § 2241 brought in the Southern District of Illinois and the claim was dismissed with prejudice. He is therefore barred from presenting this argument in a second petition by § 2244(a). Petitioner has objected to this recommendation. (Rec. Doc. No. 38, at 1.) Specifically, the ...