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
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.
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 ...