The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge
Petitioner Christian A. Hansen, a federal prisoner currently
confined at the Federal Correctional Institution at Fort Dix, New
Jersey, has submitted a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241.*fn1 Because it appears that this Court lacks jurisdiction to
consider this Petition, and that it is not in the interest of
justice to transfer, this Court will dismiss the petition without
prejudice. See 28 U.S.C. §§ 1631, 2255.
On June 2, 1999, following conviction by a jury, Petitioner was
sentenced in the U.S. District Court for the Southern District of
Georgia to a term of 108 months imprisonment, to be followed by
three years of supervised release. Petitioner's conviction and
sentence were affirmed on direct appeal. See United States v.
Hansen, 262 F.3d 1217 (11th Cir. 2001), cert. denied,
535 U.S. 1111 (2002).
Thereafter, Petitioner filed a timely motion to vacate, set
aside, or correct sentence under 28 U.S.C. § 2255. See Hansen
v. United States, Civil Action No. 03-0064 (AAA) (S.D. Ga.). The
trial court denied that motion on June 18, 2004. Petitioner did
On November 10, 2004, this Court received this Petition, dated
August 19, 2004, for writ of habeas corpus pursuant to
28 U.S.C. § 2241. Petitioner asserts one ground for relief: that the trial court erred in imposing a sentencing enhancement
without making a factual finding "beyond a reasonable doubt" that
the grounds for the enhancement existed. In support, Petitioner
cites Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely
v. Washington, 124 S.Ct. 2531 (2004).*fn3
In lieu of an Answer, Respondent sought and obtained leave to
file a Motion [Docket Entry No. 7] to Dismiss, asserting that the
Petition is in actuality a "second or successive" § 2255 motion,
over which this Court lacks jurisdiction. Petitioner has filed no
response to the Motion to Dismiss.
Petitioner contends that he is entitled to habeas relief under
§ 2241, despite the fact that he has filed a previous § 2255
motion, because he is "actually innocent" of the enhancement and relief under § 2255 now is "inadequate or
ineffective." See In re Dorsainvil, 119 F.3d 245 (3d Cir.
As noted by the Court of Appeals for the Third Circuit in
Dorsainvil, 119 F.3d at 249, § 2255 has been the "usual avenue"
for federal prisoners seeking to challenge the legality of their
confinement. See also Chambers v. United States,
106 F.3d 472, 474 (2d Cir. 1997); Wright v. United States Bd. of Parole,
557 F.2d 74, 77 (6th Cir. 1977); 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, while challenges to the
manner in which a sentence is executed should be brought under §
Before a second or successive § 2255 motion can be filed in the
district court, the petitioner must move in the appropriate court
of appeals for an order authorizing the district court to
consider the petition on the grounds of either (1)
newly-discovered evidence that would be sufficient to establish
by clear and convincing evidence that no reasonable factfinder
would have found the petitioner guilty of the offense or (2) a
new rule of constitutional law made retroactive by the Supreme
Court. 28 U.S.C. §§ 2244, 2255.
Section 2255, however, contains a safety valve where "it
appears that the remedy by motion is inadequate or ineffective to
test the legality of [Petitioner's] detention." 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 v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002).
"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 Dorsainvil, the Third Circuit held that the remedy
provided by § 2255 is "inadequate or ineffective," permitting
resort to § 2241 (a statute without timeliness or successive
petition limitations), where a prisoner who previously had filed
a § 2255 motion on other grounds "had no earlier opportunity to
challenge his conviction for a crime that an intervening change
in substantive law may negate." 119 F.3d at 251. The court
emphasized, however, that its holding was not intended to suggest
that § 2255 would be considered "inadequate or ineffective"
merely because a petitioner is unable to meet the stringent
gatekeeping requirements of § 2255. Id. To the contrary, the court was persuaded that § 2255 was "inadequate or ineffective"
in the unusual circumstances presented in Dorsainvil because it
would have been a complete miscarriage of justice to confine a
prisoner for conduct that, based upon an intervening
interpretation of the statute of conviction by the United States
Supreme Court, may not have been criminal conduct at all. Id.
More recently, the Court of Appeals for the Third Circuit
emphasized the narrowness of its Dorsainvil holding when it
rejected a district court's conclusion that § 2255 was
"inadequate or ineffective" to address a claim based on Apprendi
v. New Jersey, an intervening decision which held that, "[o]ther
than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt."
See Okereke v. United States, 307 F.3d 117 (3d Cir. 2002) (in
which the petitioner had been sentenced based upon a drug
quantity determined at sentencing by a judge using the
preponderance of evidence standard). The Court distinguished the
intervening change in the law in Dorsainvil, which was one
"that potentially made the crime for which that petitioner was
convicted non-criminal." Id. at 120-21. Similarly, § 2255 is
not "inadequate or ineffective" to address a claim based upon
Blakely or United States v. Booker, 125 S.Ct. 738 (2005),
both of which are extensions of Apprendi. See Smith v. Nash, 2005
WL 1965500 (3d Cir. ...