United States District Court, D. New Jersey
August 15, 2005.
ANTHONY PARKER, Petitioner,
UNITED STATES OF AMERICA Respondent.
The opinion of the court was delivered by: GARRETT BROWN, District Judge
Petitioner Anthony Parker ("Parker"), a prisoner confined at
the Federal Correctional Institution at Fort Dix, New Jersey
("FCI Fort Dix"), has submitted a Petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 challenging his federal
conviction. For the reasons set forth below, the Court will
dismiss the Petition for lack of subject matter jurisdiction. I. BACKGROUND
After pleading guilty to one count of distribution of cocaine
base in violation of 21 U.S.C. § 841(a)(1), Petitioner was
convicted and sentenced pursuant to an indictment returned
September 7, 1996, charging him with four counts of drug
distribution and possession of a firearm by a felon, in violation
of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 924(c). (Pet.,
Statement of the Case; Respondent's Memorandum of law, Procedural
On March 14, 1997, Petitioner was sentenced to 150 months'
confinement, five years of supervised release, and a fine of
$20,000.00. (Pet., Statement of the Case.) On or about April 7,
1997, Petitioner's sentence was modified to reflect 210 months'
imprisonment. (Id.) Petitioner alleges that the first sentence
was never vacated. (Id.) Petitioner appealed and the Third
Circuit affirmed on April 7, 1999; Petitioner then filed an
application for habeas relief pursuant to 28 U.S.C. § 2255 and
supplemented the application on April 15, 1999. (Id.) Relief
was denied and no certificate of appealability was issued.
(Id.) Petitioner currently is serving his sentence at FCI Fort
In this Petition, brought pursuant to 28 U.S.C. § 2241,
Petitioner seeks habeas relief, specifically requesting that this
Court "order a hearing to determine the type of relief Petitioner will receive." Petitioner raises the following grounds for
relief, which are set forth here verbatim:
1. The Court lacked jurisdiction to have convicted
and sentenced Petitioner for distributing cocaine
base (crack) while the evidence established that
Petitioner only possessed cocaine base, which carries
a lesser sentence in violation of due process to the
2. The Court lacked jurisdiction to impose a second
sentence upon the Petitioner on the same offense when
it had imposed the first sentence, and never vacated
the first sentence before it imposed the second
sentence in violation of Petitioner's due process
rights of the constitution.
3. In light of Blakely v. Washington, the Court was
without jurisdiction to enhance Petitioner's sentence
with the uncharged drugs, role of offense, and for
obstruction of justice, and thus in violation of
Petitioner's due process rights under the
United States Constitution.
4. Petitioner received ineffective assistance of
counsel at pre-trial, and appellate level. [Pet., pp
Respondent opposes the Petition.
A federal habeas corpus petition is required to "specify all
the grounds for relief" and to set forth "the facts supporting
each of the grounds thus specified." See Rule 2(c) of Rules
Governing Section 2254 Cases in United States District Courts,
applicable through Rule 1(b) to Petitions under 28 U.S.C. § 2241.
"Federal courts are authorized to dismiss summarily any habeas
petition that appears legally insufficient on its face, see 28 U.S.C. § 2254 Rule 4." McFarland v. Scott, 512 U.S. 849, 856
(1994); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert.
denied, 490 U.S. 1025
Moreover, "in conducting habeas review, a federal court is
limited to deciding whether a conviction [or confinement]
violate[s] the Constitution, laws, or treaties of the
United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); accord
Engle v. Isaac, 456 U.S. 107, 119-120 (1982); Barry v. Berqen
County Probation Dept., 128 F.3d 152, 159 (3d Cir. 1997).
Section 2241 provides in relevant part:
. . . Writs of habeas corpus may be granted by the
Supreme Court, any justice thereof, the district
courts and any circuit judge within their respective
jurisdictions . . . (C) The Writ of habeas corpus
shall not extend to a prisoner unless . . . (3) He
is in custody in violation of the Constitution or
laws or treaties of the United States . . .
[28 U.S.C. § 2241) (C) (3).]
A prisoner seeking post-conviction relief from a federal
conviction or sentence is authorized to bring his collateral
attack by filing a motion to vacate, set aside, or correct the
sentence pursuant to 28 U.S.C. § 2255 in the sentencing court.
See 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 relevant part: 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.]
Moreover, § 2255 also states:
A second or successive motion must be certified as
provided in section 2244 by a panel of the
appropriate court of appeals to contain
(1) newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have
found the movant guilty of the offense; or
(2) a new rule of constitutional law, made
retroactive to cases on collateral review By the
Supreme Court, that was previously unavailable.
Section 2255 expressly prohibits a District Court from
entertaining a challenge to a prisoner's federal sentence under
28 U.S.C. § 2241 unless the remedy under § 2255 is "inadequate or
ineffective" to test the legality of a petitioner's detention:
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]
See Okereke v. United States, 307 F.3d 117
, 119-20 (3d
Cir.), cert. denied, 537 U.S. 1038 (2002); Cradle v. U.S. ex
rel. Miner, 290 F.3d 536
(3d Cir. 2002); In Re Dorsainvil,
119 F.3d 245
, 251 (3d Cir. 1997); Millan-Diaz v. Parker,
444 F.2d 95
(3d Cir. 1971); Application of Galante, 437 F.2d 1164
Cir. 1971). Petitioner bears the burden of establishing that his
§ 2255 remedy is inadequate or ineffective. Charles v.
Chandler, 180 F.3d 753, 756 (6th Cir. 1999) 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. See also Okereke,
307 F.3d at 120 (citing Cradle). If the sentencing court "could have
entertained the prisoner's claim, inquired fully into the facts
and granted the very relief the prisoner is seeking," then § 2255
is not inadequate or ineffective. United States ex rel.
Lequillou v. Davis, 212 F.2d 681
, 684 (3d Cir. 1954). "It is the
inefficacy of the remedy, not the personal inability to use it,
that is determinative." Cradle, 290 F.3d at 538. See also In
Re Vial, 115 F.3d 1192, 1194 n. 5 (4th Cir. 1997) (en banc) (the
fact that "an individual is procedurally barred from filing a §
2255 application . . ." does not make § 2255 inadequate or
ineffective). Applying these principles in the instant matter, the grounds
raised in Parker's § 2241 submission falls within the scope of
claims that are cognizable under § 2255. See United States v.
Walker, 980 F.Supp. 144, 145-46 (E.D.Pa. 1997) (challenges to a
sentence as imposed should be brought under § 2255; challenges to
the manner in which a sentence is being executed should be
brought under § 2241). Parker has already availed himself of the
opportunity to apply for relief under § 2255; therefore,
Petitioner is prohibited from proceeding under § 2241 unless §
2255 is inadequate or ineffective to raise the claims asserted.
In the instant Petition, Petitioner is challenging the
imposition and validity of his sentence on a number of grounds.
It is evident that Petitioner could have raised claims 1,2, and 4
in his first § 2255 Petition, and can not now raise these claims
in a § 2241 application if he failed previously to raise them
under § 2255 and the appropriate limitations period may have
expired, or because he has been denied permission by a Court of
Appeals to file a second § 2255 application. Review of the
submissions of the parties shows that Petitioner simply had an
opportunity for presentation of the claims in this Petition under
§ 2255. See also Cradle, supra, 290 F.3d at 539
("[Petitioner] cites neither an intervening change in the law nor
any extraordinary circumstances . . . to establish that his
remedy under § 2255 is inadequate or ineffective." citing Dorsainvil,
supra at 251-52).
Respecting Petitioner's claim pursuant to Blakely v.
Washington, 124 S.Ct. 2531 (2004) (Claim 3), it also fails. As
previously noted in the text of the statute, Petitioner does not
qualify to bring a second or successive § 2255 Petition unless
Blakely is shown to be "a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court,
that was previously unavailable". See 28 U.S.C. § 2255.
Blakely has not been made retroactive by the Supreme Court.
See Lloyd v. United States, 407 F.3d 608 (3d Cir. 2005); In
Re Olopade, 403 F.3d 159 (3d Cir. 2005); Cook v. U.S.,
386 F.3d 949 (9th Cir. 2004) (Supreme Court did not make Blakely
retroactive to cases on collateral review).
From the foregoing analysis, this Court concludes that
Petitioner does not qualify to bring a second or successive §
2255 Petition, and that § 2255 is not, for that reason or any
other asserted, inadequate or ineffective to raise the grounds
asserted by Petitioner in the instant matter. Accordingly, this
Court lacks jurisdiction to entertain the Petition for habeas
corpus relief submitted pursuant to 28 U.S.C. § 2241.*fn1 III. CONCLUSION
Based on the foregoing discussion, the Court will dismiss the
Petition for lack of jurisdiction.
An appropriate Order accompanies this Opinion.