United States District Court, M.D. Pennsylvania
RODNEY O. MCINTOSH, Petitioner
UNITED STATES OF AMERICA, Respondent
17, 2017, the Court received and filed a petition for writ of
habeas corpus submitted pursuant to 28 U.S.C. § 2241
from pro se Petitioner Rodney O. McIntosh, a federal
inmate presently confined at the United States Penitentiary,
Lewisburg, Pennsylvania. (Doc. No. 1.)
states that on October 6, 2011, a grand jury charged him with
forcible assault. (Id.) In Petitioner's instant
petition, he argues that the United States District Court for
the District of Kansas failed to separate the elements of
“forcible assault” and “physical
contact” when instructing the jury, and as such,
violated his due process rights. (Id.) Petitioner
seeks to be released from incarceration. (Id.)
review of the petition, as well as PACER, the online national
index providing public access to court electronic records,
reveals that Petitioner previously filed a motion to vacate,
set aside, and correct sentence pursuant to 28 U.S.C. §
2255 with the United States District Court for the District
of Kansas. See United States v. McIntosh, No.
15-2909, 2016 WL 4159723 (D. Kan. Aug. 5, 2016) (dismissing
§ 2255 petition and denying certificate of
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 summarily dismissed.
well settled that a 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. See, e.g., United States v.
Addonizio, 442 U.S. 178, 179 (1979). Indeed, to
challenge the validity of a sentence, a federal prisoner must
file a § 2255 motion in the sentencing court, “a
court already familiar with the facts of the case.”
See Boumediene v. Bush, 553 U.S. 723, 774-75 (2008);
see also Swain v. Pressley, 430 U.S. 372, 378 (1977)
(“[Section] 2255 created a new postconviction remedy in
the sentencing court and provided that a habeas corpus
petition may not be entertained elsewhere.”); Brown
v. Mendez, 167 F.Supp.2d 723, 726 (M.D. Pa. 2001)
(“As a general rule, a § 2255 motion
‘supersedes habeas corpus and provides the exclusive
remedy' to one in custody pursuant to a federal court
conviction.”) (quoting Strollo v. Alldredge,
463 F.2d 1194, 1195 (3d Cir. 1972) (per curiam)).
a federal prisoner may challenge the execution of his
sentence, such as a claim concerning the denial or revocation
of parole, or the loss of good-time credits, by filing a
§ 2241petition in the district court for the federal
judicial district where the prisoner is in custody.
See 28 U.S.C. § 2241(a); Rumsfeld v.
Padilla, 542 U.S. 426, 443-44 (2004); Coady v.
Vaughn, 251 F.3d 480, 485 (3d Cir. 2001).
if it the Petitioner shows “that a § 2255 motion
‘is inadequate or ineffective to test the legality of
his detention, ' . . . [he may] resort to § 2241 to
challenge the validity of the conviction or sentence.”
Brown, 167 F.Supp.2d at 726; see also 28
U.S.C. § 2255(e); Litterio v. Parker, 369 F.2d
395, 395 (3d Cir. 1966) (per curiam) (“It is firmly
established that the remedy available to a federal prisoner
under 2255 is exclusive in the absence of a showing that such
remedy ‘is inadequate or ineffective to test the
legality of [the prisoner's] detention.'”).
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 1165, 1165 (3d Cir. 1971) (per curiam)
(quoting United States ex rel. Leguillou v. Davis,
212 F.2d 681, 684 (3d Cir. 1954)). Specifically, the Third
Circuit has “applied the safety valve where an
intervening and retroactive change in law had decriminalized
the petitioner's underlying conduct, but he had no prior
opportunity to challenge his conviction and could not satisfy
the stringent standard for filing a second or successive
§ 2255 motion.” Long v. Fairton, 611
F.App'x 53, 55 (3d Cir. 2015) (citations omitted);
see In re Dorsainvil, 119 F.3d 245, 251-52 (3d Cir.
1997)). The Third Circuit has also noted that extraordinary
circumstances may justify invoking the savings clause.
Id. The burden is on the habeas petitioner to
demonstrate inadequacy or ineffectiveness. See In re
Dorsainvil, 119 F.3d at 251-52; Cagel v.
Ciccone, 368 F.2d 183, 184 (8th Cir. 1966).
“Critically, § 2255 is not inadequate or
ineffective merely because the petitioner cannot satisfy
§ 2255's timeliness or other gatekeeping
requirements.” Long, 611 F.App'x at 55;
see Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.
1988), 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. 1986), cert. denied, 479 U.S. 993 (1986).
Petitioner challenges the imposition of his sentence, not its
execution. Therefore, to proceed under § 2241, he must
demonstrate that a § 2255 motion “is inadequate or
ineffective to test the legality of his detention.” 28
U.S.C. § 2255(e). Petitioner has not met this burden.
His claim does not fall within the purview of the savings
clause, as he has not demonstrated that an intervening change
in the law made his underlying conviction non-criminal, but
that he had no prior opportunity to challenge his conviction
and could not satisfy the stringent standard for filing a
second or successive § 2255 motion. In fact, in his
previously filed § 2255 petition, the United States
District Court for the District of Kansas specifically
addressed the claim Petitioner now brings in his instant
habeas petition, i.e, whether the court should have
separated the elements of “forcible assault” and
“physical contact” when instructing the jury.
McIntosh, 2016 WL 4159723 at *11-12. The District
Court of Kansas found no error in the challenged instruction.
Id. at *12.
the Court will dismiss Petitioner's petition for a writ
of habeas corpus under 28 U.S.C. § 2241, without
prejudice to any right he may have to obtain
pre-authorization from the appropriate United States Court of
Appeals before filing a second or subsequent § 2255
motion in the sentencing court.