United States District Court, M.D. Pennsylvania
ANIRUDH L. SUKHU, Petitioner
UNITED STATES OF AMERICA, et al., Respondents
William W. Caldwell, United States District Judge.
L. Sukhu, an inmate at the Allenwood Low Federal Correctional
Institution (LFCI Allenwood), in Allenwood, Pennsylvania,
filed a pro se petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241. In his Petition, Sukhu challenges his
2009 conviction and sentence in the United States District
Court for the District of Maryland for armed bank robbery
under 18 U.S.C.§ 2113(a), (d) and (f), and the use of a
firearm in connection with a crime of violence under 18
U.S.C. § 924(c). Sukhu argues, in part, that in light of
Johnson v. United States, ___ U.S. ___, 135 S.Ct.
2551, 192 L.Ed.2d 569 (2015),  his armed bank robbery conviction
in violation is no longer a “crime of violence”
within the meaning of 18 U.S.C. § 924(c)(3). Sukho also
seeks to be resentenced in light of United States v.
Mathis, ___ U.S. ___, 136 S.Ct. 2243, 195 L.Ed.2d 604
(2016) based on his belief that he was subjected to
“double counting” when he was sentenced under 18
U.S.C. § 924(c) for both bank robbery (where he
discharged a firearm) and for possessing and discharging a
firearm under 18 U.S.C. § 924(c), which carries a
mandatory consecutive ten-year sentence. Respondent argues
that neither Johnson nor Mathis represents
an intervening change in law which invalidates Sukhu's
reasons that follow, the Petition must be construed as a
motion under § 2255 and denied.
Background and Procedural History
December 2008, a grand jury for the United States District
Court for the District of Maryland returned a three-count
indictment charging Sukhu with conspiring to commit bank
robbery in violation of 18 U.S.C. §§ 2113(a) and
(f) and 18 U.S.C. § 371 (Count I); robbing a bank by
force or violence in violation of 18 U.S.C. §§
2113(a)(, (d), and (f) (Count II); and using a firearm
(discharge) in the commission of robbing a bank in violation
of 18 U.S.C. § 924(c) (Count III). On July 23, 2009,
Sukhu entered into a plea agreement agreeing to plead guilty
to Counts II and III. Count I was dismissed. On December 11,
2009, Sukhu was sentenced to consecutive terms of 135
months' imprisonment on Count II and 120 months on Count
III. On October 29, 2010, the Fourth Circuit dismissed his
January 18, 2011, Sukhu filed a § 2255 motion to vacate,
set aside or correct his sentence. The sentencing court
denied the motion on November 18, 2011. Sukhu v. United
States, Civ. No. WDQ-11-0061, 2011 WL 5839001 (D. Md.).
The Fourth Circuit affirmed the district court's order
denying Petitioner relief on his 28 U.S.C. § 2255 motion
on May 3, 2012. United States v. Sukhu, No. 11-7708,
472 F. App'x 170 (4th Cir. 2012)(nonprecedential).
23, 2016, the Fourth Circuit denied Sukhu's motion
pursuant to 28 U.S.C. § 2244(b) and § 2255(h) for
authorization to file a second or successive 28 U.S.C. §
2255 motion relying upon Johnson, supra and
motion to vacate sentence pursuant to 28 U.S.C. § 2255
is the means to collaterally challenge a federal conviction
or sentence, ” Massey v. United States, 581
F.3d 172, 174 (3d Cir. 2009), and must be presented to the
court that imposed the sentence. See 28 U.S.C.
§ 2255(a) (providing that a defendant “may move
the court which imposed the sentence”). When
challenging the validity rather than the execution of a
federal sentence, a federal prisoner must do so through a
§ 2255 motion. See In re Dorsainvil, 119 F.3d
245 (3d Cir.1997). Section 2255 provides that federal
prisoners like Petitioner, who have already filed a §
2255 motion, may file a “second or successive
motion” provided that “a panel of the appropriate
court of appeals” has certified that the motion
contains “newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence that
no reasonable factfinder would have found the movant guilty
of the offense” or that the motion relies on “a
new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.” 28 U.S.C. § 2255(h); 28 U.S.C.
limited exceptions, § 2255 does not permit prisoners to
challenge the validity of their conviction or sentence
through a § 2241 habeas petition. See 28 U.S.C.
§ 2255(e). Where a federal prisoner improperly
challenges their federal conviction or sentence under §
2241, the district court must typically dismiss the petition
for lack of jurisdiction. Cradle v. United States ex rel.
Miner, 290 F.3d 536, 539 (3d Cir. 2002).
highly exceptional circumstances, the “safety
valve” or “savings clause” found in 28
U.S.C. § 2255(e) will permit a prisoner to challenge the
validity of his conviction in a habeas corpus proceeding
under § 2241, but only where the remedy afforded by
§ 2255(a) “is inadequate or ineffective” to
test the legality of his detention. 28 U.S.C. § 2255(e);
Gardner v. Warden Lewisburg, 845 F.3d 99, 101 (3d
Cir. 2017); Dorsainvil, 119 F.3d at 249 - 51. For a
§ 2241 petition to be appropriate, the inadequacy or
ineffectiveness of a § 2255 motion must be “a
limitation of scope or procedure [that] would prevent a
§ 2255 proceeding from affording [the petitioner] a full
hearing and adjudication of his wrongful detention
claim.” Okereke v. United States, 307 F.3d
117, 120 (3d Cir. 2002) (citing Cradle, 290 F.3d at
538). “It is the inefficacy of the remedy, not the
personal inability to use it, which is determinative.”
Cradle 290 F.3d at 538-39. A § 2255 motion is
not “inadequate or ineffective” merely because
the prisoner's time to file a § 2255 motion has
passed; he did not file a § 2255 motion; he did file
such a motion and was denied relief; or he cannot otherwise
meet the stringent gatekeeping requirements of § 2255(h)
to file a second or successive § 2255 motion.
Troiano v. Warden Allenwood USP, 614 F. App'x
49, 51 (3d Cir. 2015)(nonprecedential).
Third Circuit has only applied this “safety
valve” in the rare situation where an intervening
change in law has decriminalized the actions underlying the
prisoner's conviction. Okereke, 307 F.3d at 120
(citing Dorsainvil, 119 F.3d at 251). A § 2255
motion is inadequate “when a petitioner asserts a claim
of ‘actual innocence' on the theory that ‘he
is being detained for conduct that has subsequently been
rendered non-criminal by an intervening Supreme Court
decision' . . . but is otherwise barred from challenging
the legality of the conviction under § 2255.”
United States v. Tyler, 732 F.3d 241, 246 (3d Cir.
2013) (quoting Dorsainvil, 119 F.3d at 252). The
savings clause of § 2255, however, is confined to
instances of actual innocence of the underlying offense of
conviction, not innocence of a sentencing factor.
“Section 2241 is not available for intervening changes
in the sentencing law” as such alterations would not
render the crime for which the prisoner was convicted
non-criminal. United States v. Kenney, 391 F.
App'x 169, 172 (3d Cir. 2010)(nonprecedential)(citing
Okereke, 307 F.3d at 120-121).
Sukhu does not allege facts to bring his conviction within
the Dorsainvil exception. He cannot demonstrate that
his circumstances constitute the sort of miscarriage of
justice what would justify application of the safety valve
language of § 2255 rather than its gatekeeping