The opinion of the court was delivered by: Judge Caldwell
Petitioner, William Hazel, an inmate at the United States Penitentiary, Lewisburg, Pennsylvania, filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Hazel is challenging his 1993 convictions in the United States District Court for the Eastern District of Virginia for possession, distribution, and conspiracy to distribute heroin and cocaine. Petitioner was sentenced to life imprisonment. He attacks his convictions on the basis that the drug quantity that contributed to his sentence was not charged in the indictment nor submitted to the jury.
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. Rule 4 of the section 2254 rules permits summary dismissals.*fn1 We rely on Rule 4 to dismiss Hazel's 2241 petition, finding we have no jurisdiction over it because 28 U.S.C. § 2255, the normal statutory route for challenging a conviction and sentence, is not inadequate or ineffective.
In late 1991, Hazel and four co-defendants were named "in a fifty-count indictment that charged conspiracy and various substantive counts of distribution of heroin, cocaine, and cocaine base in violation of 21 U.S.C. §§ 846, 841 and 18 U.S.C. § 1952." United States v. Hazel, 1994 WL 642198 at *1 (4th Cir. 1994) (unpublished disposition). After a jury trial, Hazel was convicted on eleven counts, including the conspiracy count. (Doc. 1, 2241 petition at p. 3). He took a direct appeal to the United States Court of Appeals for the Fourth Circuit, which affirmed the conviction and sentence. Hazel, supra. The Supreme Court denied certiorari. See Hazel v. United States, 514 U.S. 1087, 115 S.Ct. 1804, 131 L.3d.2d 729 (1995).
Hazel filed a motion for relief under 28 U.S.C. § 2255, which the district court denied on March 14, 2003. On appeal, the Fourth Circuit affirmed. United States v. Hazel, 57 Fed. Appx. 205 (4th Cir. 2003)(per curiam) (nonprece-dential).
Hazel then filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241, which was adjudicated in the Eastern District of Virginia. That court construed the petition as a 2255 motion and dismissed it as successive. On appeal, the Fourth Circuit affirmed, on the basis that the sentencing court had no jurisdiction over a 2241 petition since Hazel was not housed in the Eastern District of Virginia. See United States v. Hazel, 204 Fed. Appx. 256 (4th Cir. 2006)(per curiam)(nonprecedential).
Petitioner then filed the current 2241 petition.
Hazel contends his conviction and sentence are unconstitutional because the indictment did not charge a drug quantity and the drug quantity was not submitted to the jury. In support, Petitioner cites United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). These cases were decided well after his conviction, but apparently to avoid retroactivity problems, see, e.g., Lloyd v. United States, 407 F.3d 608, 610 (3d Cir. 2005) (Booker is not retroactive to cases on initial collateral review), he argues that they are only specific examples of legal principles established in earlier cases like Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).*fn2 He also argues that the failure to include the drug quantity in the indictment means that the Eastern District of Virginia lacked jurisdiction to try him as the drug quantity was an essential element of the offenses charged.
Ordinarily, when challenging the validity of a conviction and sentence, a federal prisoner is limited to filing a motion pursuant to section 2255. Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). However, as section 2255 itself provides, a challenge can be brought under § 2241 if it "appears that the remedy by [a section 2255] motion is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255 ¶ 5; In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997). "It is the inefficacy of the remedy, not the personal inability to use it, that is determinative." Cradle v. United States, 290 F.3d 536, 538 (3d Cir. 2002). "Section 2255 is not inadequate or ineffective merely because the sentencing court does not grant relief, the one-year statute of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255." Id. at 539. Rather, the "safety valve" provided under § 2255 is extremely narrow and has only been applied in unusual situations, such as those in which a prisoner has had no prior opportunity to challenge his conviction for conduct later deemed to be non-criminal by a change in law. Okereke, supra, 307 F.3d at 120 (citing In re Dorsainvil, 119 F.3d at 251).
Hazel attempts to employ the safety-valve provision on two grounds. First, he argues that section 2255 is inadequate or ineffective "because of the requirements and restrictions and the time frame which makes it virtually impossible for an individual, not trained in the principles of law, to satisfy the requirements" of section 2255. (Doc. 2, at p. 10). This is essentially an objection to section 2255's gatekeeping provisions. However, as noted immediately above, the Third Circuit has said that section 2255's gatekeeping requirements do not make section 2255 inadequate or ineffective. Second, Petitioner argues section 2255 "is inadequate because the Supreme Court had not ruled on the issues raised until after the petitioner had submitted his first petition for relief." (Doc. 1, petition, ¶ 12). We reject this reason as well. See Okereke, supra, 307 F.3d at 120 (section 2241 was not available to raise an Apprendi claim simply because Apprendi had not been decided at the time the defendant had filed his 2255 motion); Estupinan v. Nash, 186 Fed. Appx. 196, 197-98 (3d Cir. 2006) (per curiam) (nonprecedential) (citing Okereke in ruling that section 2241 was not available to make a Booker challenge to a 1988 conviction).
Hazel is challenging the validity of his conviction and sentence. Thus, he must proceed under section 2255. Since Hazel has already unsuccessfully sought section 2255 relief, he must obtain certification from the appropriate Court of Appeals, in this instance the Fourth Circuit, for a second or successive section 2255 motion. The fact that he is unlikely to secure such a certification because of procedural limitations ...