United States District Court, M.D. Pennsylvania
M. MUNLEY JUDGE, United States District Court
before the court is a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241 (Doc. 1), filed on
September 18, 2017, by Frederick Perry (“Perry”),
a federal inmate confined at the Federal Correctional
Institution at Allenwood, Low, White Deer, Pennsylvania.
Court has conducted preliminary review and, for the reasons
set forth below, will dismiss the petition for lack of
jurisdiction. See R. Governing § 2254 Cases R.
following is extracted from an opinion of the United States
District Court for the Northern District of Illinois:
By way of background, Defendant/Petitioner Frederick Perry
was indicted on one count of distributing 50 grams or more of
mixtures containing cocaine base in the form of crack cocaine
in December 2006. On June 26, 2008, Perry entered a
“blind” guilty plea to the charge before Judge
Hibbler, to whom this case was then assigned. Although
Perry's motion refers to a plea agreement with the
Government, Perry's guilty plea was not taken by the
district court pursuant to a plea agreement. As is common in
the context of a “blind” plea, Perry filed a plea
declaration. The plea agreement attached to Perry's
motion as “App. A” appears to be a copy of the
draft plea agreement that the Government tendered to
Perry's counsel during plea negotiations.
On February 26, 2009, the Court sentenced Perry to 226
months' imprisonment and five years of supervised
release. The district court adopted the uncontested
Presentence Investigation Report's Guideline
calculations, under which Perry's career offender
advisory Guideline range was 262 to 327 months. Perry did not
appeal his conviction or sentence. Rather, on November 5,
2012, he filed a motion to vacate, set aside, or correct his
sentence under 18 U.S.C. § 2255.
United States v. Perry, No. 12 C 8700, 2013 WL
1966637, at *1 (N.D. Ill. May 13, 2013). On May 13, 2013, the
sentencing court denied Perry's § 2255 motion as
April 3, 2015, Perry filed a Motion for Sentence Reduction
pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782.
(Doc. 1-1, p. 3). The sentencing court denied the motion on
August 27, 2015. (Id.) The United States Court of
Appeals for the Seventh Circuit granted Perry authorization
to file a successive § 2255 motion. (Id.) He
filed his successive § 2255 on September 19, 2016.
(Id.) It was denied on July 6, 2017. (Id.)
raises the following issue in the instant petition,
“[w]hether in light of Mathis v. United
States, 136 S.Ct. 2243 (2016), United States v.
Hinkle, 832 F.3d 569 (5th Cir. 2016) and
Holt v. United States, (No. 16-1793)(7th
Cir. Dec. 13, 2016). Perry's prior convictions do not
qualify him as a career offender requiring resentencing
without the career offender enhancement.” (Doc. 1-1, p.
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
Dorsainvil, 119 F.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 Dorsainvil, 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, 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); Dorsainvil, 119 F.3d at 251.).
recognized exception to the general rule, that a challenge to
a conviction or sentence must be brought under 28 U.S.C.
§ 2255 in the sentencing court, is “where the
petitioner was in the ‘unusual position' of a
prisoner with no prior opportunity to challenge his
conviction for a crime that an intervening change in
substantive law could negate with retroactive
application.” Okereke v. U.S., 307 F.3d 117,
120 (3d Cir. 2002) (quoting In re Dorsainvil, 119
F.3d 245, 251 (3d Cir. 1997)). Perry's claim is not based
upon a contention that the conduct which led to his
conviction is no longer criminal as a result of some change
in the law. Instead, he challenges the basis for his sentence
enhancement under the Armed Career Criminal Act, pursuant to
Mathis, 136 S.Ct. 2243. The Third Circuit Court of
Appeals has not extended the limited Dorsainvil
exception to include situations where a prisoner is
challenging a sentence enhancement based on an intervening
change in substantive law. Okereke, 307 F.3d at 120
(refusing to extend Dorsainvil exception to
sentencing challenge under Apprendi). The remedy
afforded under §2241 is not an additional, alternative,
or supplemental remedy to that prescribed under §2255
and Perry fails to demonstrate that he falls within the
it appears that Perry may still have an avenue of relief open
to him. In his most recent successive Section 2255 motion,