The opinion of the court was delivered by: Thomas I. Vanaskie United States District Judge
Pablo Villagran, an inmate confined at the United States Penitentiary at Lewisburg (USPLewisburg), Pennsylvania, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 on September 4, 2007. (Dkt. Entry 1.) Along with his petition, he submitted a supporting memorandum of law. (Dkt. Entry 2.) He has paid the required filing fee. In the petition, Villagran challenges his conviction and sentence in the United States District Court for the Middle District of Pennsylvania for the offense of 2nd Degree Murder in violation of 18 U.S.C. §1111. For the reasons that follow, the petition will be dismissed for lack of jurisdiction because Villagran has failed to show that his remedy pursuant to 28 U.S.C. § 2255 for challenging his federal conviction or sentence is inadequate or ineffective.
Petitioner alleges that on February 19, 1997, a federal grand jury indicted him on charges of murdering another inmate at USP-Lewisburg in violation of 18 U.S.C. § 1111. Petitioner contends that his lawyer advised him that if he pled guilty to Second Degree Murder, he would receive a sentence as low as eleven (11) years, but no longer that seventeen (17) years. As a condition of his plea, a co-defendant would be allowed to plead guilty to Manslaughter in violation of 18 U.S.C. § 1112, and receive a sentence no longer than ten (10) years imprisonment.
On October 30, 1998, Petitioner entered his plea to Second Degree Murder, and his co-defendant entered a plea to Manslaughter. On June 14, 1999, Petitioner was sentenced to 27 years and 3 months imprisonment, to run consecutively to the 37 year aggregate sentence he was already serving, which was not to be completed until January 18, 2009, providing he maintained a record of clear conduct. On January 18, 2000, the United States Court of Appeals for the Third Circuit affirmed the judgment. In the appeal, Petitioner had contended that his pleas was involuntary. On May 15, 2000, the Untied States Supreme Court denied a request for writ of certiorari.
On April 26, 2001, Petitioner filed a motion with the sentencing court pursuant to 28 U.S.C. § 2255, challenging his conviction and sentence. On July 12, 2001, the motion was denied. It does not appear that he has sought permission to file a second or successive § 2255 motion with the Third Circuit in that he states the restrictions imposed by the AEDPA make any such motion inadequate and ineffective.
In the instant petition, Villagran raised the following two (2) grounds. He first argues that his trial counsel was ineffective when he misadvised him that he would receive an 11-17 year sentence if he pled guilty. He next argues that, unless his sentence is reduced to 11-17 years, he is "actually innocent." In this regard, he asserts that he "is innocent of a 327 month term." (Dkt. Entry 2 at 37.) His argument appears to be that he only pled guilty to facts that could produce a sentence of between 11 and 17 years in prison.*fn1
Habeas corpus petitions brought under § 2241 are subject to summary dismissal pursuant to Rule 4 ("Preliminary Consideration by the Judge") of the Rules Governing Section 2254 Cases in the United States District Courts. 28 U.S.C. § 2254 (1977).*fn2 A challenge to a federal criminal defendant's conviction or sentence, as in the instant case, generally must be brought as a motion pursuant to 28 U.S.C. § 2255 filed in the district court in the district where defendant 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.23 245, 249 (3d Cir. 1997).*fn3
That is, a § 2255 motion generally "supersedes habeas corpus and provides the exclusive remedy" to one in custody pursuant to a federal court conviction. Strollo v. Alldredge, 463 F.2d1194, 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, 2000 WL 1595967, at *1 (10th Cir. 2000)(unpublished table decision)(quoting Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)).
Only if it is shown that a § 2255 motion "is inadequate or ineffective to test the legality of . . . detention," 28 U.S.C. § 2255, may a federal inmate resort to § 2241 to challenge the validity of the conviction or sentence. "It has long been the rule in this circuit that 'the remedy by motion [under § 2255] can be 'inadequate or ineffective to test the legality of . . . detention' only if it can be shown that some limitation of scope or procedure would prevent a Section 2255 proceeding from affording the prisoner a full hearing and adjudication of his claim of wrongful detention.'" United States v. Brooks, 230 F.3d 643, 648 (3d Cir. 2000)(citing United States ex rel. Leguillou v. Davis, 212 F.2d 681, 684 (3d Cir. 1954)). See also Application of Galante, 437 F.2d 1164, 1165 (3d Cir. 1971)(per curiam).
The burden is on the habeas petitioner to allege or demonstrate inadequacy or ineffectiveness. See id.; see also, Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001). Prior unsuccessful § 2255 motions filed in the sentencing court are insufficient in and of themselves to show that the motion remedy is inadequate or ineffective. Jeffes v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001); In re Davenport, 147 F.3d 605, 608 (7th Cir. 1998); Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.), cert. denied, 488 U.S. 982 (1988); Litterio v. Parker, 369 F.2d 395, 396 (3d Cir. 1966)(per curiam). Nor do statutory limitations on filing second or successive § 2255 motions establish the inadequacy or ineffectiveness of the remedy. See United States v. Barrett, 178 F.3d 34, 50 (1st Cir. 1999)("A petition under §2255 cannot become 'inadequate or ineffective,' thus permitting the use of § 2241, merely because a petitioner cannot meet the AEDPA 'second or successive' requirements. Such a result would make Congress's AEDPA amendment of § 2255 a meaningless gesture."); Davenport, 147 F.3d at 608 ("Congress did not change [the 'inadequate or ineffective'] language when in the Antiterrorism Act it imposed limitations on the filing of successive 2255 motions. The retention of the old language opens the way to the argument that when the new limitations prevent the ...