The opinion of the court was delivered by: James F. McClure, Jr. United States District Judge
(Magistrate Judge Blewitt)
On February 17, 2009, petitioner, John F. Winkelman, Jr., an inmate at the United States Penitentiary at Canaan, Waymart, Pennsylvania, filed the instant Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Rec. Doc. No. 1). In addition to the Habeas Petition, petitioner filed a fourteen-page (14) typed memorandum with attached exhibits, Exs. A-H. (Rec. Doc. No. 2). In June 2003, petitioner was found guilty of seven counts related to narcotics trafficking, including a count which charged petitioner with knowingly using, carrying and possessing firearms during and in relation to and in furtherance of a drug trafficking crime, i.e. conspiracy to possess with intent to distribute and distribution of cocaine and marijuana, in violation of 18 U.S.C. § 924(c)(1)(A). In the instant petition, Winkelman challenges the conviction under this count, contending that it is invalid in light of Bailey v. United States, 516 U.S. 137 (1995), Watson v. United States, 128 S.Ct. 579 (2007) and United States v. Whitley, 529 F.3d 150 (2d Cir. 2008). Specifically, petitioner claims that he did not "use" the firearm in a manner restricted by 18 U.S.C. § 924(c)(1)(A) and that he received an improper minimum sentence under 18 U.S.C. § 924(c)(1)(A).
The matter was initially referred to United States Magistrate Judge Blewitt. On March 10, 2009, Magistrate Judge Blewitt filed a twenty three-page (23) report and recommendation. (Rec. Doc. No. 4). In his report, the magistrate judge, finding that the petitioner had not demonstrated that § 2255 was an inadequate or ineffective device for addressing his claims, concluded that Winkelman's Petition for a Writ of Habeas Corpus should be dismissed for lack of jurisdiction.
On March 20, 2009, petitioner filed objections to the report and recommendation. (Rec. Doc. No. 5). This matter is now ripe for disposition.
After de novo review of the record, including the report and recommendation and plaintiff's objections to the report and recommendation, and applicable law, we have concluded that we agree with the magistrate judge's analysis and recommendations, and will therefore adopt the report and recommendation. (Rec. Doc. No. 4).
On June 18, 2003, in conjunction with a jury trial, petitioner was convicted in the United States District Court for the Middle District of Pennsylvania of seven counts of narcotic trafficking, namely Counts One, Two, Three, Four, Eight, Nine and Thirteen of the Third Superseding Indictment. Presently, the relevant count is Count Thirteen, which charged petitioner with knowingly using, carrying and possessing firearms during and in relation to and in furtherance of a drug trafficking crime, i.e. conspiracy to possess with intent to distribute and distribution of cocaine and marijuana, in violation of 18 U.S.C. § 924(c)(1)(A).
On December 12, 2003, petitioner was sentenced on the stated offenses to imprisonment for the remainder of his natural life. Petitioner appealed his conviction and, on May 28, 2006, the United States Court of Appeals for the Third Circuit affirmed his conviction and sentence.
Petitioner filed a Motion to Vacate his Sentence on February 23, 2007, pursuant to 28 U.S.C. § 2255. On March 1, 2007, petitioner was ordered to file a notice of election. Petitioner complied and filed his election to have the Court rule on his § 2255 motion as filed. On May 4, 2007, petitioner filed a motion to amend his § 2255 motion. The Court denied, inter alia, Petitioner's § 2255 motion and his motion to amend on March 10, 2008.
On July 10, 2008, the Third Circuit Court of Appeals denied petitioner's application for certificate of appealability with respect to an appeal of this Court's March ...