The opinion of the court was delivered by: Yohn, J.
Currently before the court is petitioner Malcom Ladson's pro se petition for a writ of audita querela, or "actual innocence," under 28 U.S.C. § 1651(a) and a writ of habeas corpus under 28 U.S.C. § 2241. Ladson is currently serving a 20-year sentence at the Federal Correctional Institution in Otisville, New York, for his conviction for conspiracy to commit robbery in violation of 18 U.S.C. § 1951(a). Ladson claims that he is entitled to relief because this court incorrectly designated him as a "career offender" under section 4B1.1 of the United States Sentencing Guidelines ("Guidelines") when determining his sentence. For the reasons that follow below, I will dismiss the petition.
I. Factual Background and Procedural History
On March 9, 2005, a jury found Ladson guilty of one count of conspiracy to commit robbery in violation of 18 U.S.C. § 1951(a) for his participation in the "smash and grab" robbery of a jewelry store by four masked men with sledge hammers. On July 29, 2005, at the sentencing hearing, the government argued that Ladson qualified for career-offender status under section 4B1.1 of the Guidelines in part because his prior guilty plea for terroristic threats in violation of 18 Pa. Cons. Stat. § 2706 qualified as a conviction for a crime of violence. (Pet'r's Mot. for Relief of J. ("Pet'r's Mot.") Ex. 3.) Defense counsel conceded this point. (Pet'r's Mot. at 24.) Under the Guidelines, Ladson's extensive criminal history established his criminal history category at level VI. Ladson's designation as a career offender enhanced his total offense level under the Guidelines from Level 29 to Level 32 and increased the Guidelines range from 151-188 months to 210-240 months.*fn1 U.S. Sentencing Guidelines Manual (2004). I sentenced Ladson to 240 months of incarceration.*fn2 Ladson appealed and in an order dated August 23, 2007, the Third Circuit affirmed.
Since his direct appeal, Ladson has collaterally attacked his conviction and sentence through several different procedural mechanisms, all to no avail. On August 1, 2008, Ladson filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2255, which I denied on March 25, 2009. Ladson applied to the Third Circuit for a certificate of appealability, which was denied in an order dated September 28, 2009.
On December 21, 2009, Ladson filed a pro se motion for relief under Rule 60(b)(3) of the Federal Rules of Civil Procedure, again indirectly challenging his conviction and sentence. Finding no basis for Ladson's arguments, I denied the motion on January 13, 2010. The Third Circuit denied Ladson's request for a certificate of appealability on April 28, 2010, and on June 7, 2010, denied Ladson's petition for a rehearing en banc. Ladson petitioned the United States Supreme Court for a writ of certiorari, which was denied on November 1, 2010.
On April 14, 2010, Ladson filed an application with the Third Circuit seeking leave to file a second or successive habeas corpus petition under 28 U.S.C. § 2244(b). In an order dated June 8, 2010, the Third Circuit denied the application.*fn3
Most recently, Ladson has chosen to collaterally attack his sentence by filing a motion for a writ of audita querela under 28 U.S.C. § 1651(a) on March 13, 2011. The government filed a response in opposition to the motion on May 23, 2011. Ladson filed a reply brief on June 16, 2011, raising for the first time an argument that he is entitled to relief in the form of a writ of habeas corpus under 28 U.S.C. § 2241. Although this was not the proper pleading in which to raise such a claim, I will, nevertheless, address the claim.
Ladson petitions the court for resentencing for his 2005 conviction for conspiracy to commit robbery in violation of 18 U.S.C. § 1951(a). Ladson seeks relief in the form of a writ of audita querela, or alternatively a writ of habeas corpus under section 2241, because he claims that he is "actually innocent" of being a career offender under section 4B1.1 of the United States Sentencing Guidelines. He points to the decision of the United States Supreme Court in Begay v. United States, 553 U.S. 137 (2008) and the non-precedential opinion of the Third Circuit in United States v. Johnson, 376 F. App'x 205 (3d Cir. 2010) to argue that there has been a substantive change in the controlling law that applies retroactively to his case. Specifically, he asserts that under these cases his earlier conviction for terroristic threats in violation of 18 Pa. Cons. Stat. § 2706 does not qualify as a conviction for a crime of violence and that he should be resentenced without the career-offender enhancement. I do not reach the merits of this argument, however, because I conclude that under Third Circuit law neither section 2241 nor the writ of audita querela is the appropriate procedural vehicle for addressing Ladson's claims. Therefore, I will dismiss his petition.
Ladson's petition for a writ of habeas corpus pursuant to section 2241 raises the issue whether he may assert a section 2241 claim given that he has already brought a section 2255 claim. I conclude that Ladson is not entitled to proceed under section 2241 and so construe his petition as a successive 2255 claim, which I will dismiss for lack of jurisdiction.
"Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal prisoners can challenge their convictions or sentences." Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). A challenge to the validity of a conviction or sentence may be raised pursuant to 28 U.S.C. § 2241 only if section 2255 is "inadequate or ineffective." Id. "A § 2255 motion is inadequate or ineffective only where the petitioner demonstrates that some limitation of scope or procedure would prevent a § 2255 proceeding from affording him a full hearing and adjudication of his wrongful detention claim." Cradle v. United States, 290 F.3d 536, 538 (3d Cir. 2002). It is not the personal inability of a petitioner to use section 2255 that is determinative, but rather, the inefficacy of the remedy. Id. "Section 2255 is not inadequate or ineffective merely because the sentencing court does not grant relief, the one-year statute of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255." Id. at 539. Thus, section 2241 is available to attack federal convictions or sentences only in "rare situation[s]." Okereke, 307 F.3d at 120.
The Third Circuit found such a "rare situation" in In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997). There, the petitioner had no prior opportunity to challenge his conviction for conduct that the Supreme Court deemed to be non-criminal in an intervening decision. Id. at 246. The petitioner in In re Dorsainvil was allowed to ...