United States District Court, D. New Jersey
July 1, 2005.
MICHAEL SWABY, Petitioner,
JOHN NASH, Respondent.
The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
Petitioner Michael Swaby filed a Petition for a Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241 challenging his federal
sentence as unconstitutional under United States v. Booker,
543 U.S. ___, 125 S.Ct. 738 (2005).*fn1 Having thoroughly reviewed the Petition and supporting Memorandum of Law, this
Court summarily dismisses the Petition for lack of jurisdiction.
Petitioner challenges a 27-year sentence entered in the United
States District Court for the Western District of Missouri in
1989 after a jury found him guilty of conspiracy to possess with
intent to distribute cocaine base in violation of
21 U.S.C. §§ 841, 846. See United States v. Swaby, Docket No. 88-CR-219
(HFS) (W.D. Mo. filed July 13, 1992). The Eighth Circuit Court of
Appeals affirmed the conviction and sentence on January 25, 1991.
The sentencing court denied Petitioner's first motion to vacate
the sentence under 28 U.S.C. § 2255 by judgment filed July 21,
1997. See Swaby v. USA, Civil No. 95-1000 (HFS) judgment
(W.D. Mo. filed July 21, 1997). The Eighth Circuit denied a
certificate of appealability. On November 29, 2000, the Eighth
Circuit denied Petitioner's petition for permission to file a
successive § 2255 motion. See Swaby v. USA, C.A. 00-3518
judgment (8th Cir. Nov. 29, 2000).
Petitioner, who is now incarcerated at F.C.I. Fort Dix in New
Jersey, filed this Petition under 28 U.S.C. § 2241 challenging
his sentence as unconstitutional under Booker.*fn2 II. DISCUSSION
A. Standard of Review
"Habeas corpus petitions must meet heightened pleading
requirements." McFarland v. Scott, 512 U.S. 849, 856 (1994). A
petition must "specify all the grounds for relief" and set forth
"facts supporting each of the grounds thus specified." See
28 U.S.C. § 2254 Rule 2(c) (amended Dec. 1, 2004), applicable to §
2241 petitions through Habeas Rule 1(b).
Habeas Rule 4 requires the Court to examine a petition prior to
ordering an answer and to summarily dismiss the petition if "it
plainly appears from the petition and any attached exhibits that
the petitioner is not entitled to relief in the district court."
28 U.S.C. § 2254 Rule 4. "Federal courts are authorized to
dismiss summarily any habeas petition that appears legally
insufficient on its face." McFarland, 512 U.S. at 856; see
also United States v. Thomas, 221 F.3d 430, 437 (3d Cir.
2000); Siers v. Ryan, 773 F.3d 37, 45 (3d Cir. 1985), cert.
denied, 490 U.S. 1025 (1989).
Section 2241 of Title 28 of the United States Code provides in
relevant part: (c) The writ of habeas corpus shall not extend to a
prisoner unless . . . He is in custody in violation
of the Constitution or laws or treaties of the United
28 U.S.C. § 2241(c)(3).
As a result of the practical difficulties encountered in
hearing a challenge to a federal sentence in the district of
confinement rather than the district of sentence, in its 1948
revision of the Judicial Code, Congress established a procedure
whereby a federal prisoner might collaterally attack his sentence
in the sentencing court.*fn3 See 28 U.S.C. § 2255; Davis
v. United States, 417 U.S. 333, 343-44 (1974); United States v.
Hayman, 342 U.S. 205, 219 (1952). Section 2255 provides in
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to
be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of
the United States, or that the court was without
jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack,
may move the court which imposed the sentence to
vacate, set aside or correct the sentence.
28 U.S.C. § 2255, ¶ 1. "Motions pursuant to 28 U.S.C. § 2255 are the presumptive means
by which federal prisoners can challenge their convictions or
sentences that are allegedly in violation of the Constitution."
Okereke v. United States, 307 F.3d 117
, 120 (3d Cir. 2002).
This is because § 2255 expressly prohibits a district court from
entertaining a challenge to a prisoner's federal sentence under §
2241 unless the remedy under § 2255 is "inadequate or
ineffective" to test the legality of the petitioner's
See 28 U.S.C. § 2255. Specifically,
paragraph five of § 2255 provides:
An application for a writ of habeas corpus [pursuant
to 28 U.S.C. § 2241] in 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.
28 U.S.C. § 2255, ¶ 5; see Cradle v. U.S. ex rel. Miner,
290 F.3d 536
(3d Cir. 2002); In re Dorsainvil, 119 F.3d 245
(3d Cir. 1997); Millan-Diaz v. Parker, 444 F.2d 95
1971); Application of Galante, 437 F.2d 1164
(3d Cir. 1971)
(per curiam); United States ex rel. Leguillou v. Davis,
212 F.2d 681
, 684 (3d Cir. 1954).
A § 2255 motion is inadequate or ineffective, authorizing
resort to § 2241, "only where the petitioner demonstrates that
some limitation of scope or procedure would prevent a § 2255
proceeding from affording him a full hearing and adjudication of
his wrongful detention claim." Cradle, 290 F.3d at 538. "It is
the inefficacy of the remedy, not the personal inability to use
it, that is determinative." Id. "Section 2255 is not
`inadequate or ineffective' merely because the sentencing court
does not grant relief, the one-year statute of limitations has
expired, or the petitioner is unable to meet the stringent
gatekeeping requirements of the amended § 2255. The provision
exists to ensure that petitioners have a fair opportunity to seek
collateral relief, not to enable them to evade procedural
requirements." Id. at 539.
In In re Dorsainvil, 119 F.3d at 251, the Third Circuit
applied the "inadequate or ineffective" test to a § 2241 claim
challenging a sentence on the basis of a change of substantive
law that occurred after Dorsainvil's first § 2255 motion was
decided.*fn5 The Third Circuit first determined that
Dorsainvil could not raise the Bailey claim in a successive § 2255 motion
because the AEDPA restricted successive § 2255 motions to
constitutional claims.*fn6 However, the court held that, in
this narrow situation where Dorsainvil had no other opportunity
to raise the claim, § 2255 was inadequate and ineffective. The
Dorsainvil does not have and, because of the
circumstances that he was convicted for a violation
of § 924(c)(1) before the Bailey decision, never
had an opportunity to challenge his conviction as
inconsistent with the Supreme Court's interpretation
of § 924(c)(1). If, as the Supreme Court stated in
[Davis v. United States, 417 U.S. 333 (1974)], it
is a "complete miscarriage of justice" to punish a
defendant for an act that the law does not make
criminal, thereby warranting resort to the collateral
remedy afforded by § 2255, it must follow that it is
the same "complete miscarriage of justice" when the AEDPA amendment to § 2255 makes that
collateral remedy unavailable. In that unusual
circumstance, the remedy afforded by § 2255 is
"inadequate or ineffective" to test the legality of
Dorsainvil, 119 F.3d at 251 (quoting Davis v. United States,
417 U.S. 333
, 346-47 (1974)).
The Third Circuit emphasized the narrowness of its holding:
We do not suggest that § 2255 would be "inadequate or
ineffective" so as to enable a second petitioner to
invoke § 2241 merely because that petitioner is
unable to meet the stringent gatekeeping requirements
of the amended § 2255. Such a holding would
effectively eviscerate Congress's intent in amending
§ 2255. However, allowing someone in Dorsainvil's
unusual position that of a prisoner who had no
earlier opportunity to challenge his conviction for a
crime that an intervening change in substantive law
may negate, even when the government concedes that
such a change should be applied retroactively is
hardly likely to undermine the gatekeeping provisions
of § 2255.
Dorsainvil at 251 (emphasis added).*fn7
Turning to the case at bar, Petitioner argues that his 27-year
sentence is unconstitutional under Booker because the
sentencing court enhanced it on the basis of facts that were not
found by the jury or admitted by Petitioner. It is clear that a
Booker claim challenging a sentence is within the scope of
claims that are cognizable under § 2255. Therefore, this Court
lacks jurisdiction under § 2241 to entertain Petitioner's
Booker claim unless § 2255 is inadequate or ineffective for him
to raise it.
Booker evolved from the Supreme Court's decision in Apprendi
v. New Jersey, 530 U.S. 466 (2000).*fn8 In Apprendi, the
Supreme Court determined that Apprendi had a constitutional right to have
a jury, rather than a judge, find bias because the finding was
necessary to support an enhanced sentence under the New Jersey
hate crimes law. The Supreme Court reversed Apprendi's sentence
pursuant to the principle that, "under the Due Process Clause of
the Fifth Amendment and the notice and jury trial guarantees of
the Sixth Amendment, any fact (other than prior conviction) that
increases the maximum penalty for a crime must be charged in an
indictment, submitted to a jury, and proven beyond a reasonable
doubt." Apprendi, 530 U.S. at 476 (quoting Jones,
526 U.S. at 243 n. 6). In Booker, the Supreme Court determined that, for
reasons explained in Apprendi, Ring v. Arizona, 536 U.S. 584
(2002), and Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531
(2004), application of the Federal Sentencing Guidelines violated
the Sixth Amendment because the guidelines required the judge to
enhance the sentence based on the judge's determination of facts
that were not found by the jury or admitted by defendant.
Petitioner is correct that Booker is a change of law that was
announced after Petitioner's conviction became final and after
his first § 2255 motion was decided. Petitioner is also correct that he cannot raise his Booker claim in a successive §
2255 motion because Booker has not been made retroactive to
cases on collateral review by the Supreme Court.*fn9 See
In re Olopade, 403 F.3d 159 (3d Cir. 2005); see also Tyler
v. Cain, 533 U.S. 656 (2001); In re Turner, 267 F.3d 225 (3d
Cir. 2001). However, it does not follow that § 2255 is an
inadequate or ineffective procedural mechanism for Petitioner to
raise his Booker claim.
Section 2255 is not inadequate or ineffective "merely because
the sentencing court does not grant relief, the one-year statute
of limitations has expired, or the petitioner is unable to meet
the stringent gatekeeping requirements of the amended § 2255."
In re Cradle, 290 F.3d at 539. Moreover, § 2255 is not
inadequate or ineffective for a prisoner like Petitioner to raise
a Booker claim, even where he had no earlier opportunity to
raise the claim because Booker was not decided until after his
conviction became final and his first § 2255 motion was decided.
See Okereke v. United States, 307 F.3d 117 (3d Cir. 2002). As
the Third Circuit reasoned in Okereke: Unlike the intervening change in law in In re
Dorsainvil that potentially made the crime for which
that petitioner was convicted non-criminal,
Apprendi dealt with sentencing and did not render
conspiracy to import heroin, the crime for which
Okereke was convicted, not criminal. Accordingly,
under our In re Dorsainvil decision, § 2255 was not
inadequate or ineffective for Okereke to raise his
Okereke, 307 F.3d at 120-21.
If § 2255 is not an inadequate or ineffective procedural
mechanism for a prisoner who had no other opportunity to raise an
Apprendi claim, it follows that it is not an inadequate or
ineffective vehicle for a petitioner to raise a Booker claim.
Like Apprendi, Booker deals with sentencing and does not
decriminalize the conduct for which Petitioner was convicted.
Accordingly, this Court lacks jurisdiction to entertain
Petitioner's Booker claim under § 2241. See Goldberg v.
Bonaforte, 2005 WL 1491220 (3d Cir. June 24, 2005) (affirming
dismissal of § 2241 petition for lack of jurisdiction because §
2255 is not inadequate or ineffective for Booker claim); cf.
Okereke, 307 F.3d at 120-21.
Even if this Court had jurisdiction to entertain Petitioner's
claims, he could not prevail because the United States Court of
Appeals for the Third Circuit recently determined that Booker
does not apply retroactively to cases that became final on direct
review prior to January 12, 2005, the date Booker issued. See
Lloyd v. United States, 407 F.3d 608 (3d Cir. 2005); see also Schriro v. Summerlin, 124 S.Ct. 2519 (2004) (because
Ring is a new procedural rule, it does not apply retroactively
under § 2255 to cases final on direct review);*fn10 United
States v. Jenkins, 333 F.3d 151, 154 (3d Cir. 2003) (Apprendi
does not apply retroactively to first § 2255 motions because
"[i]ts application affects only the enhancement of a defendant's
sentence after he or she has already been convicted by proof
beyond a reasonable doubt").
Because § 2255 is not inadequate or ineffective for
Petitioner's claims, this Court lacks jurisdiction to entertain
them under § 2241 and must dismiss the Petition.