The opinion of the court was delivered by: Judge Munley
Before the court is the report and recommendation of Magistrate Judge Martin C. Carlson, which proposes that the court dismiss the instant petition for a writ of habeas corpus. The petitioner has filed objections to that recommendation*fn1, bringing the case to its present posture.
Petitioner Michael Selby pled guilty to charges of conspiracy to possess with intent to distribute a controlled substance on October 12, 2005, and received a sentence of 188 months. (Petition for Writ of Habeas Corpus (Doc. 1)). He appealed the conviction and sentence to the United States Court of Appeals for the Third Circuit. (Id.). That court affirmed the sentence on January 3, 2007. (Id.). Petitioner subsequently filed a motion to vacate the judgment pursuant to 28 U.S.C. § 2255, raising grounds of ineffective assistance of counsel and inaccuracies in the pre-sentence investigation. (Id.). Both the district court and the Court of Appeals denied this motion. (Id.). That court subsequently denied two applications by the petitioner for permission to file a second or successive petition pursuant to 28 U.S.C. §2255. (See Brief in Support of Petition for Habeas Corpus (Doc. 1) at 3). Petitioner then filed the instant petition for a writ of habeas corpus on July 27, 2010. (See Doc. 1). As grounds, petitioner complains that he was improperly sentenced as a career offender. A Pennsylvania court convicted him of simple assault, and this charge does not qualify as a "crime of violence" under the United States Supreme Court's decision in Begay v. United States, 553 U.S. 137 (2008). Thus, petitioner insists, he did not qualify for classification as a career offender and his sentence was improper. He also asserts that he may proceed under 28 U.S.C. § 2241 because Begay represents a retroactively applicable substantive change in federal law, which provides him with another opportunity to challenge his sentence.
On August 18, 2010, Magistrate Judge Carlson issued a report and recommendation that proposed the court dismiss petitioner's claims as improperly brought under Section 2241. Magistrate Judge Carlson found that petitioner had not made a showing that Section 2255 was inadequate or ineffective as a means of challenging the legality of his detention, and thus Section 2241 was unavailable to him. Petitioner filed objections to this recommendation, bringing the case to its present posture.
Petitioner brings this action pursuant to 28 U.S.C. § 2441. As such, the court has jurisdiction pursuant to 28 U.S.C. § 1331. ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.").
In disposing of objections to a magistrate judge's report and recommendation, the district court must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636 (b)(1)(C); see also Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). This court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The district court judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. Id.
Under 28 U.S.C. § 1915(d), the court is permitted "to consider whether an in forma pauperis complaint is frivolous or malicious before authorizing issuance of the summons and service of the complaint." Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996). The court may "dismiss as frivolous claims based on an indisputably meritless legal theory and whose factual contentions are clearly baseless." Roman v. Jeffes, 904 F.2d 192, 194 (3d Cir. 1990). Courts undertake such an evaluation before service of the complaint.
Petitioner objects to the magistrate judge's recommendation that his claim be dismissed for want of jurisdiction because it should have been brought under 28 U.S.C. § 2255 rather than 28 U.S.C. § 2241. He contends that no relief is available to him under Section 2255 and thus his remedy exists under Section 2241.*fn2
Petitioner points to the decision of the United States Supreme Court in Begay v. United States, 553 U.S. 137 (2008), to argue that a substantive change in the controlling law that applies retroactively to his case has appeared. Because of this change in the law, petitioner argues, he is entitled to bring his case under Section 2241. He points to case law from other districts and circuits which he contends establishes his right to file the instant petition under these circumstances.
At issue here is the relationship between the two statutes. Section 2241 provides that a court may issue a writ of habeas corpus to a prisoner "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Section 2255 provides that a federal prisoner "claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the Court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack" can move the court to set aside the sentence. 28 U.S.C. §2255(a). Moreover, Section 2255 is the sole remedy for a prisoner ...