The opinion of the court was delivered by: William W. Caldwell United States District Judge
Defendant, Steven B. Wilkinson, is currently serving a two-year term in a Pennsylvania correctional institution, SCI-Cresson, for a parole violation. He still has a five-year term of supervised release to serve on a 210-month sentence imposed by this court in 1993 for possession of a firearm by a felon. He has filed a pro se motion under 28 U.S.C. § 2255 seeking a reduction of two years and seven months in the term of supervised release. This represents about the amount of time Defendant spent in federal detention while the United States unsuccessfully litigated its position that he should be civilly committed as a sexually dangerous person. This period began on February 13, 2007, the day Defendant was released from confinement on his sentence for the federal firearm-possession offense, and ended on September 8, 2009, the day Defendant was transferred to Pennsylvania to begin serving his parole-violation term.
After review of the motion and the procedural history of this case, we have decided the following. Defendant's motion is properly considered under section 2255, but he cannot proceed under section 2255 because he had previously filed a 2255 motion. However, his motion can be considered under 28 U.S.C. § 2241 by way of section 2255's "safety valve" provision, but we cannot grant the requested relief as there is no valid ground for doing so.
We will therefore deny the motion. However, we advise Defendant that he might be able to obtain relief by filing a motion under 18 U.S.C. § 3583(e)(1) to reduce his supervised-release term. The difficulty is that such a motion is not available to him right now because he must wait until he has served one year of that term before filing the motion. He may also file a motion under 18 U.S.C. § 3583(e)(2). Of course, we express no opinion on whether any such motions would succeed.
In July 1993, Defendant pled guilty to an information charging him with being a felon in possession of a firearm after having prior violent felony convictions, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). In November 1993, Defendant was sentenced to 210 months' imprisonment and five years of supervised release. He took no direct appeal but on April 24, 1997, did file a 2255 motion. In December 1997, we denied the motion, and Defendant took no appeal.
On February 13, 2007, the day Defendant completed serving his time on his federal sentence, the United States filed a "Notice" in the United States District Court for the District of Massachusetts that on February 12 a certificate under 18 U.S.C. § 4248(a) had been completed, certifying Defendant as a sexually dangerous person. The Notice requested the hearing required by section 4248(a) on whether Defendant should be civilly committed. (Doc. 1, United States v. Wilkinson, No. 07-12061). A certificate stays the person's release until the hearing. § 4248(a)("A certificate . . . shall stay the release of the person pending completion of procedures contained in this section."). The district court, aware of the Fourth Amendment issue presented by the statutory stay, held a probable-cause hearing on whether Defendant should be detained pending the hearing, and held that he should. See United States v. Wilkinson, No. 07-12061, 2008 WL 427295 (D. Mass. Feb. 14, 2008).*fn1 After the hearing on the merits, the court ruled that Defendant should not be subject to civil commitment as a sexually dangerous person. United States v. Wilkinson, 646 F. Supp. 2d 194, 208-09 (D. Mass. 2009).
On September 8, 2009, Defendant was transferred to Pennsylvania and has now begun serving his two-year parole-revocation sentence at SCI-Cresson. (Doc. 40, 2255 motion, ninth page). He filed his current 2255 motion in an attempt to remedy what he views as illegal confinement for the two years and seven months that elapsed while the civil-commitment issue was litigated. In pertinent part, Defendant asserts his detention was illegal for the following reasons. First, he did not in fact qualify for civil commitment, as the district court ruled. Second, his detention violated the Eighth Amendment because it began shortly before he completed serving his firearm-possession sentence when the government could have sought his certification as a sex offender at any time during his fifteen-year incarceration. Third, the detention was time served on his sentence so that he was illegally held more than five months after his maximum date of incarceration under the 210-month sentence this court imposed.*fn2 Fourth, the detention was a breach of his plea agreement, which called for a maximum of 210 months' incarceration. Fifth, the detention violated due process as he was kept beyond his maximum sentence date without the due-process hearings required to deprive him of his good-time credits. Sixth, the detention prevented him from receiving credit for his pre-sentencing custody and for the days he had earned as good-time credits while imprisoned on the federal sentence. Seventh, the detention violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because it was not based on a finding by a jury. Eighth, the detention violated the Double Jeopardy Clause because it was a second punishment for the firearm-possession offense.
Petitioner believes an appropriate remedy would be for us to reduce his five-year supervised-release term by the time he spent in civil commitment. Alternatively, he requests that we vacate the supervised-release term in its entirety, noting that he would still be subject to supervision after his release from confinement by way of the three years of parole supervision he owes Pennsylvania after he finishes serving his parole-revocation sentence.*fn3
Defendant seeks relief under 28 U.S.C. § 2255. It appears that section 2255 is the way he must proceed in seeking a reduction in his term of supervised release. See Gregory v. Grondolsky, 2010 WL 318370, at *1 (3d Cir. 2010)(per curiam) (nonprecedential)(defendant seeking credit against his sentence for time spent in pretrial detention under conditions violative of the Eighth Amendment must proceed by way of section 2255 and not section 2241 because he is seeking a modification of the sentence originally imposed). However, Defendant has already filed a 2255 motion, and we cannot entertain a second or successive such motion without the approval of the court of appeals, see 28 U.S.C. § 2255(h), and it appears that the grounds for the court of appeals' approval are absent here.*fn4
However, under section 2255's "safety valve," id. § 2255(e), Defendant could pursue his claims under 28 U.S.C. § 2241 if "the remedy by way of [a section 2255] motion is inadequate or ineffective to test the legality of his detention." The Third Circuit has stated that the safety valve should be limited to "unusual" circumstances so that section 2255's gatekeeping requirements are not nullified. See In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). Hence the inadequacy or ineffectiveness cannot arise "merely . . . because the petitioner cannot meet the gatekeeping requirements of § 2255." Manna v. Schultz, 591 F.3d 664, 665 (3d Cir. 2010). Instead, 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)).
Such a situation occurred in Dorsainvil where the defendant had had his first 2255 motion adjudicated before the Supreme Court issued an opinion interpreting the statutory elements of his offense to mean that the conduct that resulted in his conviction was not actually criminal. Defendant then tried to present this claim in a second 2255 motion. The Third Circuit ruled that he did not satisfy section 2255's gatekeeping requirements for filing a second or successive 2255 motion but did hold that section 2255 was inadequate or ineffective, based in part on the fact that the defendant could not have brought his claim in his initial 2255 motion because the change in the law had come after ...