United States District Court, M.D. Pennsylvania
8, 2019, pro se Petitioner Dietrick Lewis Johnson,
Sr. (“Petitioner”), a federal inmate currently
incarcerated at the United States Penitentiary Canaan in
Waymart, Pennsylvania (“USP Canaan”), initiated
the above-captioned action by filing a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. No.
1.) On July 15, 2019, Petitioner paid the requisite filing
fee and also filed a motion to hold his § 2241 petition
in abeyance for twenty-one (21) days to allow him to submit
an amended petition to the Court. (Doc. No. 4.) In an Order
dated July 17, 2019, the Court granted Petitioner's
motion and directed him to submit his amended § 2241
petition within twenty-one (21) days. (Doc. No. 5.) On July
18, 2019, the Court received a motion to appoint counsel
(Doc. No. 6) and amended § 2241 petition (Doc. No. 7)
from Petitioner. The Court therefore deems the amended §
2241 petition to be the operative pleading in this matter.
challenges the 240-month sentence imposed on him in 2013 by
the United States District Court for the Eastern District of
Texas after he pled guilty to carjacking with intent to cause
serious bodily harm, in violation of 18 U.S.C. § 2119.
(Doc. No. 7); United States v. Johnson, Nos.
4:14-CV-460, 4:12CR00080, 2015 WL 4592995, at *1 (July 29,
2015). In 2014, the United States Court of Appeals for the
Fifth Circuit dismissed Johnson's appeal, concluding that
it “present[ed] no nonfrivolous issue for appellate
review.” See United States v. Johnson, 567
Fed.Appx. 307 (5th Cir. 2014). Petitioner subsequently filed
a motion to vacate pursuant to 28 U.S.C. § 2255, which
the Eastern District of Texas denied. See Johnson,
2015 WL 4592995, at *1.
2016, Petitioner sought leave from the Fifth Circuit to file
a second or successive § 2255 motion, arguing that he
was misadvised as to the maximum penalty he faced under the
allegations set forth in his indictment. See In re
Johnson, No. 16-41204 (5th Cir.) (filed Sept. 20, 2016).
Specifically, Petitioner maintained that because his
indictment did not actually allege that serious bodily injury
resulted from the carjacking, he could not be sentenced to
more than fifteen (15) years of incarceration, the maximum
penalty for the basic offense of carjacking. See Id.
The Government filed a response indicating that it did not
oppose Petitioner's motion seeking leave to file a second
or successive § 2255 motion. See id. (filed
Nov. 23, 2016). However, in an Order dated January 12, 2017,
the Fifth Circuit denied Petitioner's motion for
authorization to file a second or successive § 2255
motion, concluding that he had not satisfied the requirements
for filing such a motion set forth in 28 U.S.C. §
2255(h). See id. (filed Jan. 12, 2017).
amended § 2241 petition, Petitioner claims that he is
actually innocent of the crime to which he pled guilty. (Doc.
No. 7 at 1, 15.) Petitioner bases his actual innocence
argument on the Supreme Court's recent decision in
Burrage v. United States, 571 U.S. 204 (2014), in
which the Court held that “where use of [a] drug
distributed by the defendant is not an independently
sufficient cause of the victim's death or serious bodily
injury, a defendant cannot be liable under the penalty
enhancement of 21 U.S.C. § 841(b)(1)(C) unless such use
is a but-for cause of the death or
injury.” See id. at 218-19; (Doc. No. 7).
He argues that because his indictment did not specifically
allege that serious bodily injury resulted from the
carjacking, he is actually innocent of such offense. (Doc.
No. 7 at 15.) Petitioner also appears to fault trial counsel
for failing to raise this argument and asserts that this
charging error was caused by gross prosecutorial misconduct.
(Id. at 4-13.) As relief, Petitioner seeks to have
his judgment of conviction vacated. (Id. at 21-22.)
For the following reasons, the Court will dismiss
Petitioner's amended petition without prejudice.
corpus petitions are subject to summary dismissal pursuant to
Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts, 28 U.S.C. foll. § 2254
(2004). The provisions of Rule 4 are applicable to §
2241 petitions under Rule 1(b). See, e.g.,
Patton v. Fenton, 491 F.Supp. 156, 158-59 (M.D. Pa.
1979). Rule 4 provides in pertinent part that “[i]f it
plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief in the district
court, the judge must dismiss the petition and direct the
clerk to notify the petitioner.”
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 motion to vacate pursuant to § 2255 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); Russell v. Martinez,
325 Fed.Appx. 45, 47 (3d Cir. 2009) (noting that “a
section 2255 motion filed in the sentencing court is the
presumptive means for a federal prisoner to challenge the
validity of a conviction or sentence”). Conversely, a
federal prisoner may challenge the execution of his sentence,
such as the denial or revocation of parole or the loss of
good-time credits, by filing a petition pursuant to 28 U.S.C.
§ 2241 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.
443-44 (2004); Coady v. Vaughn, 251 F.3d 480, 485
(3d Cir. 2001). However, if a 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.” See Brown v. Mendez,
167 F.Supp.2d 723, 726 (M.D. Pa. 2001); see also 28
U.S.C. § 2255(e); Litterio v. Parker, 369 F.2d
395 (3d Cir. 1966) (“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.”
See Application of Galante, 437 F.2d 1164, 1165 (3d
Cir. 1971) (quoting United States ex rel. Leguillou v.
Davis, 212 F.3d 681, 684 (3d Cir. 1954)). Specifically,
the United States Court of Appeals for 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.” See Long v. Fairton, 611
Fed.Appx. 53, 55 (3d Cir. 2015) (citations omitted); In
re Dorsainvil, 119 F.3d 245, 251-52 (3d Cir. 1997)).
This “safety-valve” clause is to be strictly
construed. See In re Dorsainvil, 119 F.3d at 251;
see also Russell, 325 Fed.Appx. at 47 (noting that
the safety valve “is extremely narrow and has been held
to apply in unusual situations, such as those in which a
prisoner has had no prior opportunity to challenge his
conviction for a crime later deemed to be non-criminal by an
intervening change in law”). The burden is on the
habeas petitioner to demonstrate inadequacy or
ineffectiveness. See In re Dorsainvil, 119 F.3d at
251-52; Dusenbery v. Oddo, No. 17-2402, 2018 WL
372164, at *3 (M.D. Pa. Jan. 11, 2018) (citing
Application of Galante, 437 F.2d at 1165).
“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), (providing that prior unsuccessful § 2255 motions
filed in the sentencing court are insufficient in and of
themselves to show that the motion remedy is inadequate or
ineffective); Litterio, 369 F.2d at 396. “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). If a
petitioner improperly challenges a federal conviction or
sentence under § 2241, the petition must be dismissed
for lack of jurisdiction. See Application of
Galante, 437 F.2d at 1165.
Third Circuit recognized in In re Dorsainvil, a
federal prisoner can pursue relief under § 2241 only
where a subsequent statutory interpretation reveals that the
prisoner's conduct is no longer considered to be criminal
conduct so as to avoid a complete miscarriage of justice.
See In re Dorsainvil, 119 F.3d at 251; see also
Okereke v. United States, 307 F.3d 117, 120-21 (3d Cir.
2002) (holding § 2241 may not be used to raise an
Apprendi v. New Jersey, 530 U.S. 466 (2000) claim
that is barred by the procedural limitations imposed by the
AEDPA); Brown v. Mendez, 167 F.Supp.2d 723, 726-27
(M.D. Pa. 2001). “Section 2241 is not available for
intervening changes in the sentencing law, ” such as
arguments based on Apprendi. See United States
v. Kenney, 391 Fed.Appx. 169, 172 (3d Cir. 2010).
Sentencing claims “[do] not fall within the purview of
the savings clause.” See Adderly v.
Zickefoose, 459 Fed.Appx. 73, 2012 WL 252416, at *2 (3d
Cir. 2012); Pearson v. Warden Canaan USP, 685
Fed.Appx. 93, 96 (3d Cir. 2017) (“§ 2241 is not
available for an intervening change in the sentencing
Petitioner challenges his sentence, claiming that under
Burrage, he could not have been sentenced in excess
of 15 years because he was not specifically charged with
carjacking that resulted in serious bodily injury.
Petitioner, however, has not met his burden of demonstrating
that a motion under § 2255 is inadequate or ineffective
to challenge the legality of his detention. Moreover,
Petitioner's claim is not premised on any intervening
change in substantive law that would negate the criminal
nature of his conduct so that his conviction is no longer
valid. As an initial matter, Petitioner does not explain, and
the Court does not discern, how his conviction and sentence
implicate Burrage because Petitioner did not plead
guilty to drug distribution resulting in death. Furthermore,
the Third Circuit has recognized that the Supreme Court's
decision in Burrage did not decriminalize conduct;
instead, it “merely applied Apprendi v. New
Jersey . . ., and one of Apprendi's
progeny, Alleyne v. United States . . .
.”See Dixon v. Warden of FCI
Schuylkill, 647 Fed.Appx. 62, 64 (3d Cir. 2016). As
noted above, the Third Circuit has concluded that a
“§ 2255 motion is not an inadequate or ineffective
vehicle for raising an Apprendi-based
argument” and therefore § 2241 may not be used to
raise such claims. See id.; see also
Kenney, 391 Fed.Appx. at 172; Okereke, 307 F.3d
at 120-21. Thus, the Court will dismiss Petitioner's
amended § 2241 petition for lack of jurisdiction.
on the foregoing, Petitioner's amended petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc.
No. 7) will be DISMISSED for lack of
jurisdiction without prejudice to Petitioner's right to
file a § 2255 motion in the sentencing court, subject to
the pre-authorization requirements set forth in 28 U.S.C.
§§ 2244 and 2255(h), as they may apply. Because
Petitioner is not detained because of a process issued by a
state court and the petition is not brought pursuant to
§ 2255, no action by this Court with respect to a