The opinion of the court was delivered by: Robert B. Kugler, United States District Judge
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Petitioner's submission of an application seeking habeas corpus relief ("Petition"), and it appearing that:
1. The Petition was executed pursuant to 28 U.S.C. § 2241. See Docket Entry No. 1. The Petition challenges Petitioner's conviction entered, on the basis of Petitioner's guilty plea, by the United States District Court for the Eastern District of Pennsylvania ("EDPA") in 1993;*fn1 the Petition sets forth three arguments. See id. The first argument asserts that the statements Petitioner made during his plea allocution were insufficient to find him guilty of "using and carrying" --rather than merely "carrying" -- a firearm in connection with his drug trafficking, that is, within the meaning of the term "using" explained in Bailey v. United States, 516 U.S. 137 (1995), a Supreme Court decision entered after Petitioner's conviction. See Docket Entry No. 1, at 9. Petitioner's second argument asserts that Petitioner's indictment was deficient, while his third argument maintains that his defense counsel provided him with ineffective assistance. See id. at 10-15. Each of these arguments closes with a request for vacatur of Petitioner's conviction and his immediate release. See id. at 9-15.
2. In his Petition, Petitioner notes that he filed a Section 2255 motion with the EDPA, and that this motion was denied on April 22, 1997, but the Petition is silent as to the date of Petitioner's filing of his Section 2255 motion. See id. at 3. Petitioner, however, asserts that the three above-listed arguments were not previously presented to any other court and, in addition, his instant Petition is jurisdictionally proper because the Petition asserts a "new interpretation of statute" and, so, the Petition is Petitioner's "first opportunity to put [his challenges] before a court." Id. at 7. 3. However, Petitioner's aforesaid statements are not reflective of the truth. In United States v. Robinson, 2002 U.S. Dist. LEXIS 16551, the EDPA addressed Petitioner's post-2255 challenges (raised in Petitioner's motion for reduction of his sentence on the basis of Amendment 599 to the U.S. Sentencing Guidelines Manual); the EDPA detailed the relevant background as follows:
On September 8, 1993, Robinson, a supervisor in the Mark Anthony Brown drug distribution organization. . . , pled guilty to conspiracy to distribute cocaine base, cocaine, and marijuana, in violation of 21 U.S.C. § 846, a RICO violation, in violation of 18 U.S.C. § 1962(c), and carrying and using a firearm in connection with drug trafficking, in violation of 18 U.S.C. § 924(c). At the November 2, 1994 sentencing, this Court determined that Robinson's offense level was 38, with a two point enhancement for possessing a firearm. With a criminal history category of I and a base offense level of 40, Robinson received a 292 month prison sentence on the conspiracy and RICO counts, and a consecutive 60 month sentence on the firearms count. Robinson timely filed an appeal of his conviction and sentence. On May 31, 1995, the Third Circuit Court of Appeals affirmed Robinson's conviction and sentence. On March 7, 1997, Robinson filed a pro se [m]otion . . . [p]ursuant to 28 U.S.C. § 2255, which this Court dismissed on April 22, 1997. This [c]court also denied Robinson's certificate of appealability on July 23, 1997. The Third Circuit also denied Robinson's requests for certificates of appealability on September 17, 1997, [then, or repeated applications, on] August 7, 1998 . . . and [on] March 13, 2001. . . . The essence of Robinson's [motion for reduction of his sentence on the basis of Amendment 599] is that he would not have agreed to a stipulation that the conspiracy involved in excess of fifteen kilograms of cocaine if he had been adequately advised by his attorney of the sentence associated with that amount of drugs. What Robinson is arguing is ineffective assistance of counsel. Such a claim is appropriately raised in a Habeas Corpus petition pursuant to 28 U.S.C. § 2255. Because Robinson has previously filed a § 2255 motion, a second or successive § 2255 motion must be approved by the United States Court of Appeals for the Third Circuit before it is filed. 28 U.S.C. § 2244(a). Robinson, 2002 U.S. Dist. LEXIS 16551, at *1-2, 7-8; appeal dismissed United States v. Robinson, 85 Fed. App'x 875 (3d Cir. 2003).
4. This Court is without jurisdiction, under § 2241, to entertain the Petition at bar. A court presented with a petition for writ of habeas corpus "shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled there."
28 U.S.C. § 2243. Thus, "[f]ederal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face." McFarland, 512 U.S. at 856; see also United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir.), cert. denied, 490 U.S. 1025 (1985).
5. Section 2241 of Title 28 of the United States Code provides in relevant part:
The writ of habeas corpus shall not extend to a prisoner unless- . . .
He is in custody in violation of the Constitution or laws or treaties
of the United States. 28 U.S.C. § 2241(c)(3). As a result of the
practical difficulties encountered in hearing a challenge to a federal
sentence in the district of confinement rather than the
district of sentence, in its 1948 revision of the Judicial Code,
Congress established a procedure whereby a federal prisoner might
collaterally attack his sentence in the sentencing court.*fn2
See 28 U.S.C. § 2255; 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. "Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal prisoners can challenge their convictions or sentences that are allegedly in violation of the Constitution." Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). This is because § 2255 expressly prohibits a district court from entertaining a challenge to a prisoner's federal sentence under § 2241 unless the remedy under § 2255 is "inadequate or ineffective" to test the legality of the petitioner's detention.*fn3 See 28 U.S.C. § 2255. Specifically, paragraph five of § 2255 provides:
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 Cradle v. Miner, 290 F.3d 536 (3d Cir. 2002). 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. "It is the inefficacy of the remedy, not the personal inability to use it, that is determinative." Id. (emphasis supplied). Indeed, "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.
6. However, in In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997), the Court of Appeals held that the remedy provided by § 2255 is "inadequate or ineffective" (hence, permitting resort to § 2241, a statute without timeliness or successive petition limitations), where 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 ...