The opinion of the court was delivered by: Judge Conner
Presently before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, filed by petitioner Victor Solomon ("Solomon"), an inmate currently incarcerated at the Federal Correctional Institution in Allenwood, Pennsylvania ("FCI-Allenwood"). (Doc. 1.) Solomon is challenging his federal sentence in the United States District Court for the Southern District of New York. For the reasons that follow, the petition will be dismissed for lack of jurisdiction.
In October 2001, Solomon pleaded guilty to one count of use and carrying of a firearm during and in relation to a drug trafficking crime, see 18 U.S.C. § 924(c)(1)(A)(ii), in the United States District Court for the Southern District of New York. On February 6, 2002, Solomon was sentenced on that count to a term of imprisonment of seven (7) years, followed by three (3) years of supervised release. As a condition of his sentence, the district court ordered Solomon to "comply with the directives of the Immigration and Naturalization servic (sic)*fn1 and the Immigration laws." (Doc. 8-2 at 6.)
Solomon did not file a direct appeal. Further, Solomon has not filed any petitions challenging his conviction or sentence pursuant to 28 U.S.C. § 2255. On March 22, 2007, Solomon filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his guilty plea and sentence and claiming that his counsel was ineffective in advising him that pleading guilty would not subject him to any immigration consequences.*fn2 (See Doc. 1 at 6.) On April 25, 2007, the court issued an order to show cause, directing respondent to reply to Solomon's petition. (Doc. 7.) The matter is now ripe for disposition.
"[T]he usual avenue for federal prisoners seeking to challenge the legality of their confinement," including a challenge to the validity of a conviction or to a sentence, is a motion filed under 28 U.S.C. § 2255. In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997). See also United States v. Miller, 197 F.3d 644, 648 n.2 (3d Cir. 1999); Snead v. Warden, F.C.I. Allenwood, 110 F.Supp. 2d 350, 352 (M.D. Pa. 2000). The § 2255 motion must be filed in the district court where the defendant was convicted and sentenced. See 28 U.S.C. § 2255 ¶ 5 (the motion must be filed in "the court which sentenced him").
A defendant can pursue a § 2241 petition only when he shows that the remedy under § 2255 would be "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255 ¶ 5; 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 the 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)). Hence, "[s]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." Cradle, 290 F.3d at 539. If a petitioner improperly challenges a federal conviction or sentence under section 2241, the petition must be dismissed for lack of jurisdiction. Application of Galante, 437 F.2d 1164, 1165 (3d Cir. 1971).
In the instant case, Solomon challenges the legality of his detention. Specifically, he contends that the 2001 guilty plea, which included a waiver of his right to appeal, is invalid because his counsel erroneously advised him that, as part of his plea agreement, he would not be subjected to deportation as a result of the conviction. Despite this alleged assurance from counsel, he claims that in 2005 he was informed by FCI-Allenwood staff that an I.N.S.*fn3 detainer had been lodged against him. (See Doc. 1 at 5.) He also claims that he sought to reopen his immigration proceedings based upon the alleged violation of his constitutional right to due process and on the purported invalidity of his guilty plea. Apparently, the immigration judge closed the case for lack of jurisdiction.*fn4 Consequently, Solomon contends that he has no other recourse; he cannot file a direct appeal or a motion under 28 U.S.C. § 2255 because his time for filing these types of appeals has passed.
Clearly, Solomon has not demonstrated that the remedy under § 2255 would be inadequate or ineffective to test the legality of his detention. He did not file a direct appeal or a § 2255 motion in the sentencing court. Solomon's claim that he could not have timely brought the instant claims under § 2255 because he was only made aware of the deportation issue in 2005 is unavailing. The mere fact that Solomon's present circumstances preclude him from invoking the remedy available to him under § 2255 does not demonstrate the inadequacy or inefficacy of the remedy itself. See Cradle, 290 F.3d at 538 ("It is the inefficacy of the remedy, not the personal inability to use it, that is determinative."). Further, as noted above, that a § 2255 motion may be time-barred is not a valid reason for pursuing relief under section 2241. Id. at 539.
Solomon argues that his remedy under section 2255 was inadequate and ineffective because he was convicted in 2002 for conduct that is not a crime,*fn5 and, as a result, this type of claim can be brought under section 2241. This argument may provide part of the justification for a section 2241 petition when a defendant is subject to the gatekeeping requirements of section 2255 for a second or successive § 2255 motion, see Dorsainvil, 119 F.3d at 251, but that is not this instance. Solomon has never filed a § 2255 motion, nor has he sought permission to file a second or successive § 2255 motion in the Southern District of New York.
In sum, Solomon has made no showing that § 2255 is inadequate or ineffective to test the legality of his conviction and sentence. Further, the remedy afforded under § 2241 is not an additional, alternative, or supplemental remedy to that prescribed under § 2255.*fn6 Consequently, the court will dismiss this § 2241 petition for lack of jurisdiction. Of course, dismissal has no effect on Solomon's right to file a § 2255 motion in the Southern District of New York. As noted above, there is no jurisdictional bar to such a motion. That a § 2255 motion would likely be untimely is clear; however, the statute of limitations is an affirmative defense that must be raised by the government, see United States v. Bendolph, 409 F.3d 155, 164 (3d Cir. 2005), or by the court, if it decides to do so sua sponte. Id. at 166.
An appropriate order will issue.
CHRISTOPHER C. CONNER United States ...