The opinion of the court was delivered by: Judge Vanaskie
Paul S. Levan, an inmate confined at the Federal Correctional Institution at Schuylkill (FCI-Schuylkill), Pennsylvania, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 on September 20, 2007. Along with the petition, Levan filed a motion to proceed in forma pauperis and a declaration in support thereof. (Dkt. Entries 2, 3.) In the petition, Levan challenges his conviction and sentence in the United States District Court for the Eastern District of Pennsylvania for the offense of Conspiracy to Manufacture in Excess of 1 Kilogram of Methamphetamine, in violation of 21 U.S.C. § 846. For the reasons that follow, the in forma pauperis motion will be granted,*fn1 and the petition dismissed for lack of jurisdiction because Levan 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.
Levan states that he was indicted on May 20, 1997, for a violation of 21 U.S.C. § 846, Conspiracy to Manufacture in excess of 1 Kilogram of Methamphetamine. A trial on the charge began in the Eastern District of Pennsylvania court on July 22, 1997. On July 28, 1997, the Honorable Franklin S. Van Antwerpen declared a mistrial due to the jurors' inability to reach a unanimous verdict. A second trial was thereafter conducted, and resulted in a guilty verdict on September 18, 1997. On January 9, 1998, Levan was sentenced to 293 months of incarceration to be followed by 10 years of supervised release. Levan asserts that a two point offense level enhancement for drug quantity and a two level enhancement for obstruction of justice based on determinations made by the District Judge by a preponderance of the evidence elevated his sentencing exposure from a range of 151 to 188 months to a range of 235 to 293 months.
On November 12, 1998, a direct appeal was pursued to the Third Circuit Court of Appeals. The appeal was denied on January 27, 1999. On April 25, 2000, Levan filed a motion pursuant to 28 U.S.C. § 2255 with the Eastern District. He supplemented the motion on July 28, 2000.
In the initial motion he raised the arguments that his trial counsel was ineffective both during trial and at sentencing, and also that the government failed to turn over Brady material which prejudiced him. In the supplement to the motion, filed following the Supreme Court decision of Apprendi v. New Jersey, 530 U.S. 466 (2000),*fn2 Levan argued that he was denied due process and trial by jury because the court and not the jury determined the quantity of drugs involved. Following an evidentiary hearing, the supplemented motion was denied on November 14, 2000. See Levan v. United States, 128 F. Supp.2d 270 (E.D. Pa. 2001).
On March 26, 2001, Levan filed a request for a Certificate of Appealability with the Third Circuit Court of Appeals. The application was denied on July 1, 2002. Thereafter, he submitted a petition for Rehearing En Banc with the Third Circuit. The petition was denied on September 3, 2002. On November 26, 2002, Levan states that he appealed his conviction and sentence to the United States Supreme Court. On January 13, 2003, the Supreme Court denied certiorari. On May 8, 2003, Levan filed a Motion to Recall the Mandate in the Third Circuit Court of Appeals. This motion was denied on May 29, 2003.
On January 10, 2006, following the United States Supreme Court's ruling in United States v. Booker, 543 U.S. 220 (2005), Levan filed a motion for leave to file a second or successive motion pursuant to 28 U.S.C. § 2255, which was denied on January 26, 2006. Levan now files this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his conviction and sentence. In the petition, he contends that: (1) he is "actually innocent" of the sentence he received due to a clarification of the law as it existed when he was originally sentenced, and (2) his trial violated the Due Process Clause of the Fifth Amendment to the United States Constitution because he was not informed of the proper consequences of his decision to proceed to trial. (Dkt. Entry 4, Memorandum at 1.) As relief, Petitioner seeks either the removal of the four (4) level enhancement in his offense level, a new trial, or reinstatement of the original plea offer.
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).*fn3 A defendant can pursue a 2241 petition only when he shows that the remedy under section 2255 would be "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255; 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 a 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)); see also Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001)("A prior unsuccessful § 2255 motion or the inability to meet" the requirements for a second or successive 2255 motion "does not make § 2255 inadequate or ineffective."); Brown v. Mendez, 167 F. Supp. 2d 723, 727 (M.D. Pa. 2001). If a petitioner improperly challenges a federal conviction or sentence under § 2241, the petition must be dismissed for lack of jurisdiction. Application of Galante, 437 F.2d 1164, 1165 (3d Cir. 1971).
In Cradle v. United States, the Third Circuit emphasized that a § 2255 motion is not inadequate or ineffective to test the legality of a federal prisoner's detention, so as to permit the prisoner to seek habeas relief pursuant to § 2241, merely because the sentencing court had denied relief, because the one-year statute of limitations had expired, or because the prisoner was unable to meet the stringent gatekeeping requirements of § 2255. Rather, the court in Cradle held that the habeas exception recognized in § 2255 was merely to make sure that petitioners had a fair opportunity to seek collateral relief, not to enable them to evade procedural requirements. Cradle, 290 F.3d at 538-39.
As stated in Dorsainvil, the availability of the § 2241 remedy to challenge a federal conviction is extremely limited. Dorsainvil, 119 F.3d at 250. A prisoner can pursue habeas relief under the safety valve clause of § 2255 usually only in a situation where a subsequent statutory interpretation reveals that the prisoner's conduct is no longer criminal. See Brown, 167 F. Supp. 2d at 726-27.
Application of the above principles compels the conclusion that Levan cannot raise his claims in the instant § 2241 petition. First, the dismissal of Levan's previous § 2255 motion does not make the § 2255 remedy inadequate or ineffective. While he claims to have pursued a motion for permission to file a second or successive § 2255 motion, he also claims that this motion was denied. Further, despite ...