The opinion of the court was delivered by: Simandle, District Judge
This matter is before the Court on Petitioner's motion for reconsideration of the dismissal of his petition for habeas corpus.
THE COURT FINDS AS FOLLOWS:
1. On February 24, 2009, Petitioner Anthony Hatches, a prisoner confined at the Federal Correctional Institution at Fairton, New Jersey, sought a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner was convicted of, among other crimes, "possession" of a firearm during and in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c). In his petition, he asserted that he is "actually innocent" of the § 924(c) "possession" conviction pursuant to the rule announced by the Supreme Court in Bailey v. United States, 516 U.S. 137 (1995).
2. This Court recharacterized Petitioner's motion as a motion pursuant to 28 U.S.C. § 2255 because of the nature of the relief sought. See Coady v. Vaughn, 251 F.3d 480, 485-86 (3d Cir. 2001). Petitioner had previously filed a motion pursuant to § 2255 in the West Virginia trial court that convicted him, which the trial court denied. Hatches v. United States, Civil No. 05-0054, 2005 WL 2716374 (W.D. Va. Oct. 21, 2005).
3. Consequently, this Court dismissed the petition for lack of jurisdiction as a successive petition based on 28 U.S.C. § 2244(b)(3)(A) which provides that "Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." Without the required authorization from the Court of Appeals, this Court lacks the subject matter jurisdiction necessary to consider Petitioner's motion. Robinson v. Johnson, 313 F.3d 128, 138 (3d Cir. 2002).*fn1
4. The Court acknowledged that in In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997), a case involving a Bailey claim, 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. However, the Court found that Petitioner had an earlier opportunity to raise his Bailey claim because Petitioner presented a Bailey challenge to the trial court, which found it meritless. Therefore, Petitioner's motion was properly characterized as a motion pursuant to § 2255.
5. Petitioner moves for reconsideration because this Court did not provide him notice that the Court would recharacterize his motion as being pursuant to § 2255. See United States v. Miller, 197 F.3d 644 (3d Cir. 1999) (requiring warning for such recharacterization when it makes another motion into a first-filed § 2255 motion because it effects the petitioner's later ability to sue).
6. Local Civil Rule 7.1(i) governs the Court's review of Defendants' motion for reconsideration. Rule 7.1(i) requires the moving party to set forth the factual matters or controlling legal authorities it believes the Court overlooked when rendering its initial decision. L. Civ. R. 7.1(i). To prevail on a motion for reconsideration, the movant must show:
(1) an intervening change in the controlling law;
(2) the availability of new evidence that was not available when the court . . . [rendered the ...