United States District Court, M.D. Pennsylvania
DAVID A. LUSTER, Petitioner,
WARDEN ODDO, Respondent.
Matthew W. Brann United States District Judge
A. Luster, an inmate presently confined at the Allenwood
United States Penitentiary, White Deer, Pennsylvania
(USP-Allenwood) filed this pro se habeas corpus
petition pursuant to 28 U.S.C. § 2241. Named as
Respondent is USP-Allenwood Warden L. J. Oddo. The required
filing fee has been paid.
states that he was indicted by a grand jury in the United
States District Court for the Middle District of Georgia on a
charge of aggravated bank robbery. He was subsequently
convicted of that offense and is presently serving a sentence
which was imposed on April 1, 2004. See Doc. 1,
¶ 4. Luster acknowledges that he neither pursued a
direct appeal nor previously sought collateral relief with
the sentencing court via a petition pursuant to 28 U.S.C.
pending action challenges the legality of the underlying
indictment on the basis that it “did not explicitly
express the essential facts of the citation movant was
alleged to have violated.” Id., ¶ 6. The
petition contends that the landscape of the law with respect
to his pending argument has substantively changed as a result
of the principles announced in Apprendi v. New
Jersey, 530 U.S. 466 (2000),  Alleyne v. United
States, 133 S.Ct. 2151 (2013),  and Johnson v. United
States, 135 S.Ct. 2551 (2015) and he cannot satisfy the
gatekeeping provisions of § 2255.
indicates that his underlying criminal indictment did not
provided adequate notice of charged crime because it failed
to expressly mention use, attempted use, threatened use of
physical force in seeking an enhanced sentence under the
Armed Career Criminal Act (ACCA). See Id. at ¶
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 claims of an
improperly enhanced sentence via a § 2241 petition. It
would appear that it is Luster's contention that this
Court has jurisdiction over his § 2241 action by virtue
of his ongoing detention at USP-Allenwood.
challenging the validity of a federal sentence and not its
execution,  a federal prisoner is generally limited to
seeking relief by way of a motion pursuant to 28 U.S.C.
§ 2255. In re Dorsainvil, 119 F.3d 245, 249 (3d
Cir. 1997); Russell v. Martinez, 325 Fed.Appx. 45,
47 (3d Cir. 2009)(“a section 2255 motion filed in the
sentencing court is the presumptive means for a federal
prisoner to challenge the validity of a conviction or
sentence”). A challenge can only be brought under
§ 2241 if “it . . . appears that the remedy by [a
§ 2255] motion is inadequate or ineffective to test the
legality of his detention.” 28 U.S.C. § 2255(e).
This language in § 2255, known as the safety-valve
clause, must be strictly construed. Dorsainvil, 119
F.3d at 251; Russell, 325 Fed.Appx. at 47 (the
safety valve “is extremely narrow and has been held to
apply in unusual situations, such as those in which a
prisoner has had no prior opportunity to challenge his
conviction for a crime later deemed to be non-criminal by an
intervening change in the law”).
is the inefficacy of the remedy, not the personal inability
to use it, that is determinative.” Cradle v. United
States, 290 F.3d 536, 538 (3d Cir. 2002). “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. See also,
Alexander v. Williamson, 324 Fed.Appx. 149, 151 (3d Cir.
is clearly challenging the validity of his 2004 sentence
which was imposed by the Middle District of Georgia. Thus, he
must do so by following the requirements of § 2255. As
previously noted, there is no indication by Petitioner that
he either filed a direct appeal or previously sought relief
via a § 2255 action. Luster's instant claims are not
based upon a contention that his conduct is no longer
criminal as a result of some change in the law. Nor has
Petitioner shown that he is unable to present his claims via
a § 2255 proceeding.
recognized by the Honorable Kim R. Gibson in Pollard v.
Yost, No. 07-235, 2008 WL 4933599, at *6 (W.D. Pa. Nov.
18, 2008), for a challenge to a federal conviction to be
presented by a federal inmate by way of a § 2241
petition, there must not only be “a claim of actual
innocence but a claim of actual innocence coupled with the
inability to have brought the claim before because of a
change in the construction of the criminal statute by a court
having the last word on the proper construction ...