United States District Court, M.D. Pennsylvania
M. MUNLEY JUDGE
before the court is a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241 (Doc. 1), filed on June 1,
2017, by Norman Shaw, Jr. ("Shaw"), a federal
inmate confined at the United States Penitentiary at Canaan
("USP-Canaan"), Pennsylvania. Shaw seeks to proceed
in forma pauperis. (Doc. 4). The Court has conducted
preliminary review and, for the reasons set forth below,
dismissal of the petition is warranted. See R. GOVERNING
§ 2254 CASES R. 4, 1(b).
following background is extracted from disposition of an
appeal of the denial of Shaw's motion to correct
restitution filed in the United States Court of Appeals for
the Tenth Circuit:
In 1996, Mr. Shaw robbed a bank in Alaska. He pleaded guilty
and was sentenced to serve 41 months in prison, followed by
supervised release for three years. He was ordered to pay
restitution in the amount of $2, 407. United States v.
Shaw, No. A96-CR-32-JKS (D.Alaska), doc. 47 (amended
judgment). On September 26, 2002, jurisdiction over his
supervised release was transferred to the Western District of
Missouri. Id., doc. 73.
In July 2003, the District Court for the Western District of
Missouri revoked Mr. Shaw's supervised release and
sentenced him to seven months' incarceration. United
States v. Shaw, No. 02-CR-00203-NKL-1 (W.Dist.Mo.), doc.
17. As part of its judgment, it again ordered him to pay the
restitution of $2, 407 due under his District of Alaska
conviction. See id. No further term of supervised
release was ordered. It appears that Mr. Shaw completed his
sentence of incarceration on this conviction and was
released. But he did not finish paying his restitution.
In June 2005, Mr. Shaw robbed a bank in Kansas City, Kansas.
This resulted in the filing of the current case, No.
05-CR-20073, in the District of Kansas. He pleaded guilty and
was sentenced to a prison term of 165 months, to be followed
by a term of supervised release of three years. He was also
ordered to pay restitution of $700 to Bank Midwest, the
victim of his latest bank robbery. The prior restitution
order from Alaska/Missouri was not made part of this
Mr. Shaw later moved under 28 U.S.C. § 2255 to vacate
the judgment in No. 05-CR-20073. After the district court
denied his motion, he appealed. His appellate issues
concerned his attorney's alleged failure to file a notice
of appeal and had nothing specifically to do with
restitution. This court denied him a certificate of
appealability (COA), holding that the appeal fell within the
scope of his appeal waiver. United States v. Shaw,
292 Fed.Appx. 728, 730-31 (10thCir.2008).
United States v. Shaw. 508 F.App'x 769, 770
(10th Cir. 2013). The Tenth Circuit determined that the
district court lacked jurisdiction over the motion for
restitution and remanded with instructions that the district
court dismiss the motion. (Id. at 773).
to his petition, Shaw sought relief via 28 U.S.C.
§ 2255, in November 2007. (Doc. 1, p. 4). On December
29, 2015, he sought permission to file a second or successive
§ 2255 petition with the Tenth Circuit, which was
granted on May 6, 2016. (Id.) Shaw then filed a
second or successive 28 U.S.C. § 2255 motion on or about
June 20, 2016, in the United States District Court for the
District of Kansas claiming that the residual clause of the
Armed Career Offender is void, vague and unconstitutional
under Johnson v. U.S., 135 S.Ct. 2551 (2015).
United States v. Shaw, No. CR 05-20073-CM, 2017 WL
2191345, at *1 (D. Kan. May 17, 2017). The motion was denied,
hi He sought reconsideration of the denial. On May 17, 2017,
the sentencing court construed the motion for reconsideration
as a second or successive petition. Id. The
sentencing court recognized that the Supreme Court held in
Beckles v. United States, 137 S.Ct. 886, 890 (2017),
that the advisory sentencing guidelines are not subject to
vagueness challenges under the due process clause, and
dismissed the matter without prejudice to Shaw's right to
seek proper authorization in the United States Court of
Appeals for the Tenth Circuit Court to file a second or
successive petition. Id. at 2.
appears that, rather than seeking relief in the Tenth
Circuit, Shaw filed the present § 2241 petition in this
court. In citing Johnson v. U.S.A., 135 S.Ct. 2551
(2015), Shaw again argues that "[t]he Residual Clause in
the definition of 'violent felony' under the Armed
Career Criminal Act is unconstitutionally vague." (Doc.
1, p. 6). He also challenges his "Base Score of his
Custody Classification" as unconstitutional.
(Id. at 7). He cites to Johnson and case
law emanating from the United States Court of Appeals for the
Tenth Circuit. (Id.) He is seeking elimination of
the "unconstitutional force claim and residual clause
from [his] current sentence which was enhanced by the
District of Kansas by the now void, vague ACCA residual
clause. . .", and a correction of his custody
classification. (Doc.l, p. 8).
to the legality of federal convictions or sentences that are
allegedly in violation of the Constitution may generally be
brought only in the district of sentencing pursuant to 28
U.S.C. § 2255. Okereke v. United States, 307
F.3d 117 (3d Cir. 2002) (citing Davis v. United
States 417 U.S. 333, 342 (1974)); see In re
Dorsainvij 119F.3d 245 (3d Cir. 1997). A petitioner may
only resort to a § 2241 petition in the unusual
situation where the remedy by motion under § 2255 would
be inadequate or ineffective. See 28 U.S.C. § 2255; see
Dorsainvij 119 F.3d at 251-52. Importantly,
§2255 is not "inadequate or ineffective"
merely because the sentencing court has previously denied
relief. See Id. at 251. Nor do legislative
limitations, such as statutes of limitation or gatekeeping
provisions, as is the case here, placed on § 2255
proceedings render the remedy inadequate or ineffective so as
to authorize pursuit of a habeas corpus petition in this
court. Cradle v. United States, 290 F.3d 536, 539
(3d Cir. 2002); United States v. Brooks, 230 F.3d
643, 647 (3d Cir. 2000); Dorsainvij 119 F.3d at
251.). Rather, only when a federal prisoner is in an unusual
position of having no earlier opportunity to challenge his
conviction or where he "is being detained for conduct
that has subsequently been rendered noncriminal by an
intervening Supreme Court decision" can he avail himself
of §2241. Dorsainvij 119 F.3d at 251-52.
first § 2255 motion was denied on the merits and the
sentencing court construed his motion for reconsideration of
that denial as a second or successive petition and dismissed
it without prejudice to seek authorization to file a second
§ 2255 petition in the United States Court of Appeals
for the Tenth Circuit. Shaw, 2017 WL 2191345, at * 1. Rather
than pursue that avenue of ...