The opinion of the court was delivered by: Conti, District Judge.
MEMORANDUM OPINION AND ORDER
Pending before the court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. ' 2241 by a person in federal custody (the AMotion@ (ECF No. 279)) at Criminal No. 02-186, filed by petitioner James Semme Frazier (Apetitioner@ or AFrazier@).*fn1 Petitioner requests relief on the grounds of Aactual innocence@ due to a substantive change of law that was not previously available, specifically, the Fair Sentencing Act of 2010 (AFair Sentencing Act@ or AFSA@), Pub.L. 111B220, 124 Stat. 2372 (2010). Petitioner argues that under the new standards promulgated in the FSA, he is no longer guilty of 21 U.S.C. ' 841(b)(1)(B) and would therefore not have been a career offender at the time of his sentencing under United States Sentencing Guideline ' 4B1.1.
Previously, on January 22, 2009, the court denied petitioner=s motion to vacate or set aside his judgment of conviction pursuant to 28 U.S.C. ' 2255 with respect to petitioner=s claim that his counsel, Federal Public Defender Thomas Livingston (ALivingston@), was ineffective for failing to use police reports to impeach a witness, but granted petitioner=s motion to amend the earlier ' 2255 motion to include a claim that Livingston was ineffective for failing to request a continuance to take photographs of the scene where a police officer alleged that he observed a hand-to-hand drug transaction. (ECF No. 268.) On June 24, 2009, the court issued a memorandum opinion and order (the AMemorandum Opinion@), denying petitioner=s amended ' 2255 motion to vacate. (ECF No. 278.) Upon reviewing the Motion and the government=s response thereto (ECF No. 281), the court will deny the Motion for the reasons set forth below.
On the night of June 8, 2002, Officer Philip Mercurio (AMercurio@) and Officer Robert Kravals, while working plain clothes patrol in a neighborhood known for drug-trafficking, alleged they observed two men engage in a discussion and hand-to-hand exchange. The officers, thinking the exchange was a possible drug transaction, drove their car toward the men and approached the individual they believed to be the seller. This individual was later identified as petitioner. Mercurio asked to speak with petitioner, and petitioner fled. While fleeing, Mercurio observed petitioner remove a bag of cocaine from his right pocket, which petitioner discarded. Mercurio recovered the bag of cocaine. The officers called for backup, and law enforcement officials were able to surround petitioner and eventually place him under arrest. After petitioner=s arrest, Mercurio identified petitioner, a convicted felon, as the person who had a firearm on May 31, 2002 and fled from police on that date.
On September 10, 2002, a federal grand jury returned an indictment charging petitioner with possession of a firearm by a convicted felon on or about May 31, 2002, in violation of 18 U.S.C. ' 922(g)(1) (ACount One@) and with possession with intent to distribute five grams or more of a mixture and substance containing a detectable amount of cocaine base, in the form commonly known as crack, a schedule II controlled substance, on or about June 8, 2002, in violation of 21 U.S.C. " 841(a)(1) and 841 (b)(1)(B)(iii) (ACount Two@). (ECF No. 1.)
Petitioner filed a motion to suppress (ECF No. 18) and a motion to sever the two counts. (ECF No. 17.) After a suppression hearing, which was held over two days, May 9 and May 23, 2003, the court denied the motion to suppress and granted the motion to sever. (ECF Nos. 27, 32, 33.) Petitioner was represented by Livingston during the suppression hearing and the trial of Count One. Count One was tried before a jury, which on October 2, 2003, returned a verdict of guilty. (ECF No. 67.) Petitioner was represented by Attorney Thomas Farrell during the trial of Count Two. Count Two was tried before a jury, and concluded in a mistrial on November 19, 2004. (ECF No. 127.) After a retrial, a jury on March 18, 2005, returned a verdict of guilty at Count Two. (ECF No. 153.)
On December 2, 2004, petitioner filed a motion to vacate pursuant to 28 U.S.C. ' 2255 with respect to Count One (ACount One ' 2255 Motion@). (ECF No. 129.) Counsel was appointed to represent petitioner and a hearing was held on that motion. The issues raised in the Count One ' 2255 Motion related to alleged ineffective assistance of counsel during the suppression hearing. After the parties submitted proposed findings of fact and conclusions of law, the court denied the motion. On March 17, 2008 petitioner filed a motion to vacate pursuant to 28 U.S.C. ' 2255 with respect to Count Two (ACount Two ' 2255 Motion@), in relation to possession with intent to distribute in violation of 21 U.S.C. ' 841(a)(1) and ' 841(b)(1)(B). On August 13, 2008, petitioner filed an amended motion to vacate pursuant to 28 U.S.C. 2255 with respect to Count Two. After the parties submitted proposed findings of fact and conclusions of law, the court denied the amended Count Two ' 2255 Motion on August 13, 2008.
On October 12, 2010 petitioner filed the currently-pending petition for a writ of habeas corpus pursuant to 28 U.S.C. ' 2241 with respect to Count Two. Petitioner=s motion and the government=s response to petitioner=s motion (ECF No. 281) raise issues regarding: a) the availability of relief for petitioner under 28 U.S.C. ' 2241; and b) the retroactive application of the Fair Sentencing Act.
The disposition of the Motion requires the court to determine whether the Motion is properly brought under ' 2241 or must be brought under ' 2255. In order for a habeas petition under ' 2241 to avoid summary dismissal under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (28 U.S.C. ' 2254), petitioner must demonstrate that the court has jurisdiction under ' 2241 and that the relief provided through ' 2255 is Ainadequate or insufficient.@ 28 U.S.C. " 2241, 2255. Because Athe usual avenue for federal prisoners seeking to challenge the legality of their confinement@ is through a ' 2255 motion, the court will first examine ' 2255. In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997). Section 2255 provides:
(a) A prisoner in custody under sentence of a court established by Act of Congress 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
(d) An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.
(e) An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that ...