United States District Court, M.D. Pennsylvania
RICHARD P. CONABOY United States District Judge
Bailey (Petitioner) an inmate presently confined at the
United States Penitentiary, Lewisburg, Pennsylvania
(USP-Lewisburg) filed this pro se petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2241. Named as
Respondent is USP-Lewisburg Warden David Ebbert.
Petitioner's request to proceed in forma
pauperis will be granted for the sole purpose of the
filing of this action with this Court.
is a frequent pro se litigant and his prior criminal
history has been outlined in prior decisions issued by this
Court. The Petitioner was arrested and charged with the
December 23, 1993 rape of a dorm student at Howard University
in Washington D.C. See Bailey v. United States, 699
A.2d 392 (D.C. 1997). At the time of his arrest, Petitioner
had an outstanding warrant from the State of Maryland
charging him with an unrelated rape which had occurred in the
City of Baltimore. See id. Bailey was convicted of
the rape of the Howard University student following a jury
trial in the Superior Court for the District of Columbia.
Petitioner was sentenced to a fifteen (15) to forty-five (45)
year sentence by the District of Columbia Superior Court.
Bailey's conviction was affirmed on direct appeal.
pending action, Petitioner contends that his District of
Columbia indictment and conviction violate the void for
vagueness doctrine.” See Doc. 1, ¶ 5. Bailey
adds that due to a “a retroactive substantive
change” in the laws of the District of Columbia, he is
entitled to relief. See id. at ¶ 10. The
Petitioner states that while his direct appeal was pending
the District of Columbia enacted the Anti-Sexual Abuse Act of
1994, which had an effective date of May 23,
1995. In light of the enactment of that legislation,
Petitioner generally asserts that the elements of the
criminal offense for which he was convicted were
substantially changed by the new legislation. His pending
action claims entitlement to federal habeas corpus relief
because his conviction was under the prior criminal statute.
28, United States Code § 2241, vests the federal
district courts with jurisdiction to grant a writ of habeas
corpus to persons in custody in violation of the
Constitution, laws, or treaties of the United States. 28
U.S.C. § 2241(c)(3). Habeas corpus petitions are subject
to summary dismissal pursuant to Rule 4 (“Preliminary
Review”) of the Rules Governing Section 2254 Cases in
the United States District Courts, 28 U.S.C. foll. §
2254 (2004). See, e.g., Mutope v.
Pennsylvania Board of Probation and Parole, 2007 WL
846559 *2 (M.D. Pa. March 19, 2007)(Kosik, J.). The
provisions of Rule 4 are applicable to § 2241 petitions
under Rule 1(b)). See, e.g., Patton v.
Fenton, 491 F.Supp. 156, 158-59 (M.D. Pa. 1979).
provides in pertinent part: “If it plainly appears from
the petition and any attached exhibits that the petitioner is
not entitled to relief in the district court, the judge must
dismiss the petition and direct the clerk to notify the
petitioner.” A petition may be dismissed without review
of an answer “when the petition is frivolous, or
obviously lacking in merit, or where. . . the necessary facts
can be determined from the petition itself. . . .”
Gorko v. Holt, 2005 WL 1138479 *1(M.D. Pa. May 13,
2005)(McClure, J.)(quoting Allen v. Perini, 424 F.2d
134, 141 (6th Cir. 1970).
he initiated his action before this Court, Petitioner is
apparently arguing that he may bring his present claim via a
federal habeas corpus petition. It would appear that it is
Bailey's contention that this Court has jurisdiction over
his § 2241 action by virtue of his ongoing detention at
well settled that “federal courts lack jurisdiction to
entertain the habeas corpus petition of a District of
Columbia prisoner, absent a showing that the applicant's
remedy pursuant to D.C. Code. Ann. § 23-110 is
‘inadequate or ineffective to test the legality of'
the detention.” Austin v. Miner, 235 Fed.Appx.
48, 50 (3d Cir. 2007). A determination as to whether the
remedy available to a prisoner under § 23-110 is
inadequate or ineffective hinges on the same considerations
enabling federal prisoners to seek habeas relief. See
example, the § 23-110 remedy is not inadequate or
ineffective simply because the applicant is prevented from
using the remedy a second time to litigate or re-litigate
because relief has been previously denied. See Wilson v.
Office of the Chairperson, 892 F.Supp. 277, 280 (D.C.
Cir. 1995). Moreover, to allow a petitioner to file a habeas
petition merely because he already has sought relief under
§ 23-110 would obliterate congressional attempts to
promote finality in criminal cases.
v. United States, 124 F.3d 361 (2nd Cir.
1997), and In re Dorsainvil, 119 F.3d 245, 249 (3d
Cir. 1997), addressed what circumstances make a post
conviction remedy inadequate and ineffective. The legislative
limitations (either the statute of limitations or gatekeeping
provisions outlined supra at 4-5) placed upon post
conviction remedies simply do not render the remedy
inadequate or ineffective so as to authorize pursuit of a
federal habeas corpus petition. Dorsainvil, 119 F.3d
at 251. “To hold otherwise would simply effect a
transfer of forum for the adjudication of successive
challenges to the validity of a conviction.”
Kennemore v. True, Civil No. 98-1175, slip op. at 6.
(M.D. Pa. July 28, 1998)(Conaboy, J.).
the Triestman and Dorsainvil courts held
that the “inadequate and ineffective”
requirement(thus allowing a petitioner to bring a § 2241
habeas corpus action) occurs where the denial of a habeas
action would raise serious constitutional issues.
Triestman, 124 F.3d at 377; Dorsainvil, 119
F.3d at 249. The serious constitutional issue was that a
change in substantive law rendered the conduct for which
petitioner was convicted no longer criminal.
Triestman, 124 F.3d at 366; Dorsainvil, 119
F.3d at 251. Thus, these cases set a high bar for what a
court will consider a serious constitutional issue sufficient
to allow a petitioner to bring a § 2241 petition to
challenge a D.C. conviction or sentence.
has not adequately established that his present action is
based on a new rule of law made retroactive to cases on
collateral review. Unlike Dorsainvil,
Petitioner's present claim as stated does not establish
that it is premised on any intervening change in substantive
law that would negate the criminal nature of his conduct with
respect to his D.C. conviction. Fundamental to
Dorsainvil was the fact that the petitioner may
actually be innocent of the crime charged. ...