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United States District Court, D. New Jersey

August 23, 2005.


The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge


Petitioner Heriberto Gonzales-Bonilla, 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 challenging the sentence pursuant to which he is confined. Because this Court lacks jurisdiction to consider this Petition, and it is not in the interest of justice to transfer the Petition, this Court will dismiss the Petition, without prejudice, for lack of jurisdiction.


  Pursuant to a plea agreement, Petitioner pleaded guilty to possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), in the United States District Court for the Northern District of Ohio. On December 20, 2001, the Court sentenced Petitioner to a term of 78 months imprisonment, to be followed by four years of supervised release. In determining the applicable sentencing range under the United States Sentencing Guidelines, the Court granted a 2-level increase for obstruction of justice and a three-level decrease for acceptance of responsibility, with a total adjusted offense level of 25.

  Petitioner did not appeal the conviction or the sentence. Nor did Petitioner file a motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255. Petitioner contends that his counsel was ineffective for advising him that he could not appeal the sentence or challenge it collaterally.

  On March 1, 2005, this Court received this Petition for writ of habeas corpus, which is dated February 25, 2005. Here, Petitioner contends that the sentence is illegal because the obstruction-of-justice enhancement applied by the sentencing court was not agreed to in the plea agreement or determined by a jury beyond a reasonable doubt. See United States v. Booker, 125 S.Ct. 738 (2005).*fn2

  Respondent has moved to dismiss the Petition for lack of jurisdiction, asserting that Petitioner must bring his claim under § 2255, in the jurisdiction of conviction.


  Petitioner contends that he is entitled to habeas relief under § 2241, because relief under § 2255 is "inadequate or ineffective," in that any claim under § 2255 is now time-barred.*fn3 See In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997). As noted by the Court of Appeals for the Third Circuit in Dorsainvil, 119 F.3d at 249, a § 2255 motion, filed in the district of conviction, has been the "usual avenue" for federal prisoners seeking to challenge the legality of their confinement. See also Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002); 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 § 2241, in the district of confinement).

  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." 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 limitations or 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. at 251-52.

  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, 530 U.S. 466, 490 (2000), 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). Similarly, § 2255 is not "inadequate or ineffective" to address a claim based upon Booker, which is an extension of Apprendi. See Smith v. Nash, 2005 WL 1965500 (3d Cir. Aug. 17, 2005) (unpubl.). The mere fact that a claim is time barred does not render § 2255 an inadequate or ineffective remedy. See Cradle v. United States, 290 F.3d 536, 539 (3d Cir. 2002).

  Thus, the Petition must be construed as a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255,*fn4 which must be filed in the district of conviction, and over which this Court lacks jurisdiction.*fn5

  Whenever a civil action is filed in a court that lacks jurisdiction, "the court shall, if it is in the interest of justice, transfer such action . . . to any other such court in which the action . . . could have been brought at the time it was filed." 28 U.S.C. § 1631. As the Court of Appeals for the Sixth Circuit has held that Booker does not apply retroactively to cases on collateral review, see Humphress v. United States, 398 F.3d 855, 857 (6th Cir. 2005), petition for cert. filed (May 17, 2005) (No. 05-5130), it does not appear that it would be in the interest of justice to transfer this otherwise time-barred matter to the district of conviction. This Court will dismiss the Petition without prejudice, should the U.S. Supreme Court subsequently hold that Booker is retroactively applicable to cases on collateral review. See 28 U.S.C. § 2255.


  For the reasons set forth above, the Motion to Dismiss (Docket Entry No. 6) will be granted and this action will be dismissed without prejudice. An appropriate order follows.

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