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November 1, 2000


The opinion of the court was delivered by: Irenas, District Judge.


This matter having come before the Court upon petitioner's application for habeas corpus relief pursuant to 28 U.S.C. § 2241, the Court having considered the submission of the petitioner, and it appearing that:

1. Petitioner, Michael A. Harris, is currently incarcerated in the Federal Correctional Institution in Fort Dix, New Jersey.

2. On June 1, 1993, Harris was sentenced in the Eastern District of Virginia to 264 months following his conviction after a jury trial on five counts of the indictment: (i) conspiracy to distribute and possess with intent to distribute more than five kilograms of cocaine (21 U.S.C. § 846)*fn1; (ii) two counts of distributing of cocaine (21 U.S.C. § 841(a))*fn2; (iii) using a communication device in violation of (21 U.S.C. § 843(b)); and (iv) interstate travel to facilitate a conspiracy (18 U.S.C. § 1952(a)(3)). Petitioner received 264 months on the § 846 violation and concurrent sentences of 60 months on each of the § 841(a) violations and on the § 843(b) violation, and of 48 months on the § 1952(a)(3) violation. Pursuant to 21 U.S.C. § 841(b)(1)(A)(ii)(II), the maximum sentence for conspiring to distribute more that five kilograms of cocaine is a minimum of ten years and a maximum of life.*fn3 Obviously, Petitioner's sentence fell within the guideline range.

3. The trial judge, in conformance with the United States Sentencing Guidelines, found by a preponderance of the evidence that petitioner was responsible for 48 kilograms of cocaine based on the testimony of a police officer at the sentencing. This resulted in a starting offense level of 34. U.S.S.G. § 2D1.1(a)(3). The offense level was enhanced by two points for possession of a weapon during the crime, U.S.S.G. § 2D1.1(b)(1), and by two more points for obstruction of justice, apparently based on testimony given by petitioner at the trial. U.S.S.G. § 3C1.1.*fn4

4. Petitioner appealed his conviction and sentence which was affirmed by the Fourth Circuit Court of Appeals. United States v. Harris, 28 F.3d 1211 (Table), 1994 WL 249449 (4th Cir. 1994). A motion pursuant to 28 U.S.C. § 2255 alleging ineffective assistance of counsel was denied by the trial court which denial was affirmed on appeal. United States v. Harris, 112 F.3d 511 (Table), 1997 WL 211344 (4th Cir. 1997). Harris then filed what he styled a Motion for Appropriate Relief which was again denied by the District and Circuit Courts. United States v. Harris, 153 F.3d 723 (Table), 1998 WL 487095 (4th Cir. 1998). Petitioner asserts that he recently filed a petition for leave from the Fourth Circuit to file a successive motion for relief under 28 U.S.C. § 2255. See last unnumbered paragraph of 28 U.S.C. § 2255 and 28 U.S.C. § 2244. The requested permission was denied by the Fourth Circuit on September 26, 2000.*fn5

5. Harris' petition is an early round in what promises to be a heavy volley of litigation based on the United States Supreme Court decision in Apprendi v. New Jersey, ___ U.S. ___, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In simple terms, Petitioner argues that his Fifth Amendment rights under the Due Process Clause and his notice and jury trial guarantees of the Sixth Amendment were violated because the finding that he was responsible for 48 kilograms of cocaine was not made by a jury using a "beyond a reasonable doubt" standard of proof, but rather by a trial judge at sentencing using only a preponderance standard. A similar argument could be made with respect to the enhancement for possession of a weapon during the crime.*fn6 Since challenges to the legality of a federal sentence are generally brought under § 2255, we must first consider the jurisdiction of the court to consider this claim under § 2241.

6. Petitioner claims that he seeks redress from this Court under 28 U.S.C. § 2241 because relief is not available under 28 U.S.C. § 2255. See 28 U.S.C. § 2255 as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (codified in relevant part as 28 U.S.C. § 2255).

7. As amended by the AEDPA, 28 U.S.C. § 2255 provides that:

An application for a writ of habeas corpus on behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention. (emphasis added).

8. In In Re Dorsainvil, 119 F.3d 245, 248 (3d Cir. 1997), the Third Circuit held that a petitioner may seek relief pursuant to 28 U.S.C. § 2241 because his § 2255 relief has become "inadequate or ineffective" only under very narrow circumstances. In Dorsainvil, the narrow circumstance permitting the petitioner's filing of a petition under § 2241 was a change in the Supreme Court's interpretation of the meaning of "use" under 18 U.S.C. § 924(c), the statute pursuant to which the Dorsainvil petitioner had been convicted. See Dorsainvil, 119 F.3d at 251.

9. Apprendi is a lengthy opinion with two concurring opinions and two dissents which were joined by four justices. This opinion puts into play the issue of where it is proper to draw the line between (i) "sentencing factors," which may be determined at the time of sentencing by a low standard of proof and (ii) "elements of the offense," which must, pursuant to the Fifth and Sixth Amendments, be properly charged in an indictment or information and be found by a jury beyond a reasonable doubt. While it is arguable that prior jurisprudence may have foreshadowed this result,*fn7 it can hardly be said that a reasonable prisoner would have been required to raise this issue in a timely § 2255 filing made before Apprendi was decided. It was even less predictable that a prisoner could have foreseen the dissenting opinion of Justice O'Conner in which she suggested that the Apprendi decision could be applied to factual determinations made pursuant to the U.S.S.G. even where the ultimate sentence was below or at the statutory maximum. This Court finds that petitioner's claim is one of the few instances where Dorsainvil operates to permit a § 2241 challenge to the lawfulness of a federal sentence. See United States of America v. Lawrence Brooks, 230 F.3d 643, 646-48 (3d Cir. 2000).

10. In Apprendi the defendant fired several shots into the home of an African-American neighbor. He was indicted on a variety of charges and pled guilty to, inter alia, two counts charging possession of a firearm for unlawful purposes, N.J.S.A. 2C:39-4a, a second degree offense which normally carries a penalty range of 5 to 10 years. N.J.S.A. 2C:43-6(a)(2). New Jersey statutes permit the imposition of an "extended" term of imprisonment if

The defendant in committing the crime acted, at least in part, with ill will, hatred or bias toward, and with a purpose to intimidate, an individual or group of individuals because of race, ...

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