United States District Court, M.D. Pennsylvania
H. RAMBO United States District Judge.
Barbara Acosta, a federal inmate presently confined at the
United States Penitentiary at Lewisburg, Lewisburg,
Pennsylvania, filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. §2241, in which he named the
warden of that facility as the Respondent. (Doc. 1.)
review of Acosta's petition and accompanying memorandum
and attachments thereto reveals that on July 25, 2007, a
federal grand jury in the District of Arizona returned a
two-count indictment charging Acosta with child sex
trafficking (Count 1) and interstate transportation of a
minor for prostitution (Count 2). On May 23, 2008, after a
seven-day jury trial Acosta was found guilty by the jury of
Count 2 but the jury was unable to reach a verdict on Count
1. Subsequently, Count 1 was dismissed by the court on motion
of the United States. On October 15, 2008, the district court
sentenced Acosta to a term of imprisonment of 262 months. A
direct appeal was taken to the Court of Appeals for the Ninth
Circuit which affirmed the conviction and sentence and then
Acosta pursued a petition for certiorari with the Supreme
Court which was denied on November 15, 2010. On February 21,
2012, Acosta filed with the district court a motion to
vacate, set aside, and correct sentence pursuant to 28 U.S.C.
§ 2255 which was denied by that court on March 4, 2013.
Subsequent proceedings in the district court were
unsuccessful and on February 2, 2015, the Court of Appeals
for the Ninth Circuit denied an application by Acosta to file
in the district court a second § 2255 motion. On April
13, 2016, a motion filed by Acosta to recall the mandate was
denied by the Ninth Circuit.
present § 2241 habeas petition, Acosta claims that he
recently discovered new evidence which establishes his actual
innocence and he requests that this court vacate or set aside
his conviction and sentence, and grant him a new trial. The
so-called new evidence consists of two affidavits executed in
May and June, 2016, and appear to reveal that a female
witness who testified against Acosta at trial has recanted
her testimony and she only testified against Acosta because
of pressure put on her by federal agents. (Doc. 2-1, at 6-7,
petition will now be given preliminary consideration pursuant
to Rule 4 of the Rules Governing § 2254 Cases, 28 U.S.C.
foll. § 2254, as made applicable to § 2241 cases by
Rule 1 thereof. For the reasons set forth below, the
petition will be dismissed summarily.
federal criminal defendant's conviction and sentence are
subject to collateral attack in a proceeding before the
sentencing court pursuant to 28 U.S.C. § 2255.
E.g., United States v. Addonizio, 442 U.S.
178, 179 (1979). The United States Court of Appeals for the
Third Circuit has held that as to issues cognizable by the
sentencing court under § 2255, a motion under §
2255 "supersedes habeas corpus and provides the
exclusive remedy." Strollo v. Alldredge, 463
F.2d 1194, 1195 (3d Cir.) (per curiam), cert.
denied, 409 U.S. 1046 (1972).
Acosta's petition filed in this court, Acosta clearly
maintains that his federal conviction violates his federal
statutory and constitutional rights. Thus, his proper avenue
of relief is a section 2255 motion filed in the district
court where he was convicted and sentenced. Acosta is
challenging his conviction on the basis of newly discovered
evidence. This is the type of claim which should be presented
to the court that sentenced Acosta.
2255 provides, in part, that "[a]n 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 the remedy by motion
is inadequate or ineffective to test the legality of his
detention" (emphasis added).
motion under § 2255 is "'inadequate or
ineffective'" only where it is established
"'that some limitation of scope or procedure would
prevent a Section 2255 proceeding from affording the prisoner
a full hearing and adjudication of his claim of wrongful
detention.'" Application of Galante, 437
F.2d 1164, 1165 (3d Cir. 1971) (per curiam) (quoting
United States ex rel. Leguillou v. Davis, 212 F.2d
681, 684 (3d Cir. 1954)). It has been recognized that the
burden is on the habeas petitioner to allege or demonstrate
inadequacy or ineffectiveness. See Id.; Cagle v.
Ciccone, 368 F.2d 183, 184 (8th Cir. 1966). Furthermore,
prior unsuccessful § 2255 motions filed in the
sentencing court are insufficient in and of themselves to
show that the motion remedy is inadequate or ineffective.
Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.),
cert. denied, 488 U.S. 982 (1988); Litterio v.
Parker, 369 F.2d 395, 396 (3d Cir. 1966) (per curiam).
"It is the inefficacy of the remedy, not a personal
inability to utilize it, that is determinative . . . ."
Garris v. Lindsay, 794 F.2d 722, 727 (D.C. Cir.)
(emphasis added), cert. denied, 479 U.S. 993 (1986).
the petitioner's burden to prove that §2255 would be
an inadequate or ineffective remedy. Reyes-Requena v.
United States, 243 F.3d 893, 901 (5th Cir. 2001)
(citing Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir.
2000)). Acosta has not met this burden. At best under the
present circumstances Acosta may demonstrate a personal
inability to utilize the § 2255 remedy, but he does not
establish the inadequacy or ineffectiveness of the remedy
itself. See Jeffers v. Holland, Civil No. 97-1203,
(M.D. Pa. Nov. 7, 1997) (Conaboy, J.); Berry v.
Lamer, Civil No. 96-1678, slip op at 13-14
(M.D. Pa. April 30, 1997) (Kosik, J.) (finding that existence
of two orders from circuit court warning petitioner that no
other submissions shall be filed or entertained in his case,
did not render his remedy by way of § 2255 motion
inadequate or ineffective); Holland v. Harding,
Civil No. 95-0870, slip op at 4 (M.D. Pa. Nov. 21,
1995) (McClure, J.)(holding that entering into a sentencing
agreement wherein the right to challenge the conviction or
sentence by direct appeal or by § 2255 motion is waived
does not render a § 2255 motion inadequate or
ineffective); see also In re Dorsainvil, 119 F.3d
245, 251 (3d Cir. 1997) (denying motion for certification to
file a second § 2255 petition without prejudice to
petitioner filing a § 2241 habeas corpus petition
because passage of a subsequent law may negate the crime of
which he was convicted, the Third Circuit Court of Appeals
stated in dicta, “[w]e do not suggest that § 2255
would be ‘inadequate or ineffective' so as to
enable a second petitioner to invoke § 2241 merely
because that petitioner is unable to meet the stringent
gatekeeping requirements of the amended § 2255. Such a
holding would effectively eviscerate Congress's intent in
amending § 2255.”).
legislative limitations on successive § 2255 proceedings
do not render the remedy either inadequate or ineffective so
as to authorize pursuit of a habeas corpus petition in this
Court. To hold otherwise would simply effect a transfer of
forum for the adjudication of successive challenges to the
validity of a conviction. That Congress did not intend such a
result is made manifest by 28 U.S.C. § 2244(a), which
provides that no district judge "shall be required to
entertain an application for a writ of habeas corpus to
inquire into the detention of a person pursuant to a judgment
of a court of the United States if it appears that the
legality of such detention has been determined by a judge or
court of the United States on a prior application for a writ
of habeas corpus, except as provided in Section 2255."
As noted above, § 2255 authorizes a district court to
consider a habeas corpus petition of a federal prisoner only
if the § 2255 motion is inadequate or ineffective.
Clearly in view of the fact that Acosta has already filed a
§ 2255 motion regarding his conviction, that remedy has
proven to be an affective and adequate means for him to
challenge the legality of his detention.
the court will dismiss Acosta's petition for a writ of
habeas corpus under 28 U.S.C. § 2241, without prejudice
to any right Acosta may have to seek leave to file a
successive § 2255 motion in the ...