United States District Court, M.D. Pennsylvania
H. RAMBO, UNITED STATES DISTRICT JUDGE.
the Court is a Petition for a writ of habeas corpus, filed
pursuant to 28 U.S.C. § 2241 (Doc. No. 1), that the
Court received for filing on May 24, 2018, by Petitioner
Shawn Nice (“Petitioner”), a federal inmate
currently confined at the United States Penitentiary at
Lewisburg, Pennsylvania (“USP-Lewisburg”).
Preliminary review of the petition has been undertaken and
for the reasons set forth below, the petition will be
dismissed for lack of jurisdiction.
review of the petition, as well as PACER, the online national
index providing public access to court electronic records,
reveals that Petitioner was convicted in the United State
District Court for the Southern District of Florida for
possessing a firearm as a convicted felon, in violation of 18
U.S.C. § 922(g)(1). (Doc. No. 1 at 1.); United
States v. Nice, No. 0:09-cr-60286-KAM-1 (S.D. Fla. July
26, 2010). Petitioner appealed his 180-month sentence and the
United States Court of Appeals for the Eleventh Circuit
affirmed his conviction and sentence. United States v.
Nice, No. 10-13528 (11th Cir. Apr. 28, 2011). Petitioner
subsequently filed three motions to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255, all of
which were denied by the Southern District Court of Florida.
Nice, No. 0:09-cr-60286-KAM-1, Doc. Nos. 68, 78, 79,
80, 90, and 91. On June 10, 2016, the Eleventh Circuit denied
Petitioner's application to file a second or successive
motion to vacate, set aside, or correct sentence, finding
that Petitioner's sentence enhancement under the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e), was based on his two prior Florida convictions for
burglary and that he was an armed career criminal under the
enumerated offenses clause. In re: Shawn Nice, No.
16-12567-J (11th Cir. June 10, 2016). Accordingly, the
Circuit Court found that Petitioner's status as an armed
career criminal is not affected by the unconstitutionality of
the residual clause announced by the United States Supreme
Court in Johnson v. United States, ___ U.S. ___, 135
S.Ct. 2551 (2015). Id.
on March 27, 2017, Petitioner, while incarcerated at the
United States Penitentiary in Lee County, Virginia, filed a
habeas corpus petition pursuant to 28 U.S.C. § 2241,
alleging that his federal criminal sentence is unlawful under
Johnson. Nice v. Ratledge, No.
7:17-cv-00169 (W.D. Va. Aug. 28, 2017). The District Court
for the Western District of Virginia dismissed
Petitioner's petition for his failure to state facts that
were sufficient for him to satisfy 28 U.S.C. §
2255's savings clause and failed to show that his offense
conduct is no longer criminal. Id.
Petitioner's instant § 2241 petition, filed on May
24, 2018, seeks an order from the Court releasing him from
detention based on the holding in Johnson (finding
that an increased sentence under the residual clause of the
ACCA violated the Constitution). (Doc. No. 1 at 7.)
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). However, if 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
Fed.Appx. 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 Fed.Appx. 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.
instant 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. Rather, Petitioner challenges his
sentence enhancement for being a career offender. (Doc. No.
1.) His claim, therefore, is controlled by 28 U.S.C. §
2255. See Wallace v. Bledso, No. 1:1-cv-132, 2011 WL
766641, at *3 (M.D. Pa. 2011) (finding that the
petitioner's claim that a prior conviction was improperly
used to enhance his sentence must be brought by way of
section 2255); Pryce v. Scism, No. 1:10-cv-1680,
2011 WL 41883, at *4 (M.D. Pa. 2011) (concluding that section
2255, not section 2241, is the appropriate section to address
petitioner's claim, that he is actually innocent of being
a career criminal because his prior state convictions should
not have been considered to enhance his current federal
sentence, and explaining that innocence of a sentence
enhancement is not the same as actual innocence of the
underlying criminal offense such that the remedy afforded by
section 2255 would be inadequate or ineffective); United
States v. Brown, 456 Fed.Appx. 79, 81 (3d Cir. 2012)
(per curiam) (stating “[w]e have held that §
2255's ‘safety valve' applies only in rare
circumstances, such as when an intervening change in the
statute under which the petitioner was convicted renders the
petitioner's conduct non-criminal. Brown has not
satisfied that standard here, as he makes no allegation that
he is actually innocent of the crime for which he was
convicted, but instead asserts only that he is
‘innocent' of being a career offender”);
Selby v. Scism, 453 Fed.Appx. 266, 268 (3d Cir.
2011) (finding that petitioner did “not argue that he
is innocent of the offense for which he was convicted; he
argues that he is ‘innocent' of a [career offender]
sentencing enhancement because of an intervening change in
law. Accordingly the exception described in In re
Dorsainvil does not apply”).
does not allege facts which would bring him within the narrow
In re Dorsainvil exception to the general rule that
§ 2255 provides the exclusive avenue by which a federal
prisoner may mount a collateral challenge to his conviction
or sentence. See Levan v. Sneizek, 325 Fed.Appx. 55,
57 (3d Cir. 2009). Rather, Petitioner's claim is focused
on the alleged impropriety of his sentence, not the offense
for which he was convicted. Consequently, this Court lacks
jurisdiction to consider the petitioner. See Scott v.
Shartle, 574 Fed.Appx. 152, 155 (3d Cir. 2014)
(“Because [petitioner] is challenging his career
offender designation and is not claiming that he is now
innocent of the predicate offense, he does not fall within
the ‘safety valve' exception created in In re
Dorsiainvil and cannot proceed under §
2241.”). Accordingly, the petition will be dismissed
without prejudice to any right Petitioner 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.
reasons set forth above, the petition for a writ of habeas
corpus (Doc. No. 1.), will be DISMISSED
without prejudice to the Petitioner's right to file a
§ 2255 motion in the sentencing court, subject to the
pre-authorization requirements of 28 U.S.C. §§ 2244
and 2255(h), as they may apply. Because Petitioner is not
detained under a process issued by a state court and the
petition is not brought pursuant to § ...