Opinion
Civil No. 3:05-CV-2083.
December 21, 2005
REPORT AND RECOMMENDATION
On October 12, 2005, the petitioner, a federal prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a memorandum of law in support of that petition. The petitioner is currently incarcerated at the United States Penitentiary — Canaan, Waymart, Pennsylvania. In his petition, the petitioner is challenging a conviction and sentence he received from the United States District Court for the Eastern District of New York for illegal reentry into the United States.
By an Order dated October 14, 2005, the respondents were ordered to show cause on or before November 3, 2005, why the petitioner should not be granted habeas corpus relief. The Order of October 14, 2005 also provided that the petitioner may file a reply to the response within ten days of the filing of the response.
On November 1, 2005, the petitioner filed a document entitled "Unadjudicated Claim in Addition to Original Claims in Petition for Writ of Habeas Corpus, Pursuant to 28 U.S.C. § 2241. Memorandum of Points and Authorities, in Support Thereof." In this document, the petitioner is challenging the removal order underlying his conviction for illegal reentry.
The respondents requested and received an extension of time until November 25, 2005 to respond to the petition for a writ of habeas corpus.
On November 21, 2005, the petitioner filed a "Motion for Stay at the United States Penitentiary, Canaan, Waymart, Pennsylvania." The petitioner is seeking an order enjoining the respondents from transferring him to another institution. By an Order dated November 22, 2005, the respondents were ordered to file, on or before November 29, 2005, a response to the petitioner's motion for stay.
The respondents sought and received another ten day extension of time to respond to the petition. On November 29, 2005, the respondents filed a response to the petition and to the petitioner's motion for stay. On December 6, 2005, the petitioner filed a reply to the respondent's response. Without seeking leave of court to do so, on December 16, 2005, the respondents filed a supplemental response.
For reasons unexplained, on November 30, 2005, the respondents filed another copy of their response.
The respondents contend the petition should be dismissed because the petitioner can not challenge his federal conviction and sentence by way of a 28 U.S.C. § 2241 habeas petition. The respondents also contend that this court lacks jurisdiction to consider the petitioner's challenge to his removal order.
28 U.S.C. § 2255 provides:
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.
. . . .
An application for a writ of habeas corpus on 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.
The claims that the petitioner is raising challenging his conviction and sentence are the type of claims that should be brought by way of a § 2255 motion in the district court of conviction.
To be able to bring a § 2241 petition for a writ of habeas corpus, the petitioner must establish that he satisfies the safety-valve language of § 2255, i.e. that the remedy by a § 2255 motion is inadequate or ineffective to test the legality of his detention. The safety-valve language in § 2255 has been strictly construed. See Application of Galante, 437 F.2d 1164, 1165-66 (3d Cir. 1971) (unfavorable legal standards prevailing in circuit where sentencing court located does not render § 2255 remedy inadequate or ineffective); Millan-Diaz v. Parker, 444 F.2d 95, 97 (3d Cir. 1971) (doubts about the administration of a § 2255 motion in a particular case do not make the remedy inadequate or ineffective); United States ex rel. Leguillou v. Davis, 212 F.2d 681, 684 (3d Cir. 1954) (even if the sentencing court incorrectly disposes of a proper motion under § 2255 the proper remedy would be by appeal of that decision and not a habeas corpus petition). A motion under § 2255 is inadequate or ineffective only where it is established "`that some limitation of scope or procedure would prevent a Section 2255 proceeding from affording the prisoner a full hearing and adjudication of his claim of wrongful detention.'" Galante, supra, 437 F.2d at 1165 (quoting Leguillou, supra, 212 F.2d at 684).
28 U.S.C. § 2255 establishes a one-year statute of limitations applicable to § 2255 motions. Also, before a second or successive § 2255 motion may be considered by the district court, it must be certified by a three judge panel of the court of appeals to contain:
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.28 U.S.C. § 2255.
"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." Cradle v. United States, 290 F.3d 536, 539 (3d Cir. 2002). "It is the inefficacy of the remedy, not the personal inability to utilize it, that is determinative" Id. at 538.
In In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997), the Third Circuit addressed the issue of when a prisoner may bring a § 2241 habeas petition after being denied leave to file a successive § 2255 motion. Dorsainvil involved a prisoner who sought to bring a successive § 2255 motion on the basis of the United States Supreme Court's decision in Bailey v. United States, 516 U.S. 137 (1995). In Bailey the Court held that a defendant may not be convicted of using a firearm under 18 U.S.C. § 924(c) unless the government proves that the defendant "actively employed the firearm during and in relation to the predicate crime." 516 U.S. at 150. After the Bailey decision the petitioner in Dorsainvil filed an application to file a successive § 2255 motion claiming that on the basis of Bailey he was imprisoned for conduct that the Supreme Court had determined is not illegal. The Third Circuit held that a prisoner who was convicted and filed his first § 2255 motion before the Bailey decision may not file a second § 2255 motion based on Bailey because the second motion does not meet the stringent requirements created by the Antiterrorism and Effective Death Penalty Act for filing a second § 2255 motion. 119 F.3d at 248. The Third Circuit went on to indicate that although a prisoner may not file a second § 2255 motion based on Bailey he may file a 28 U.S.C. § 2241 habeas corpus petition. Id. at 251. However, the Third Circuit cautioned that:
We do not suggest that § 2255 would be "inadequate or ineffective" so as to enable a second petitioner to invoke § 2241 merely because that petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255. Such a holding would effectively eviscerate Congress's intent in amending § 2255. However, allowing someone in Dorsainvil's unusual position — that of a prisoner who had no earlier opportunity to challenge his conviction for a crime that an intervening change in substantive law may negate, even when the government concedes that such a change should be applied retroactively — is hardly likely to undermine the gatekeeping provisions of § 2255.119 F.3d at 251.
The Third Circuit held that the petitioner in Dorsainvil may bring a § 2241 petition because to hold otherwise might result in the imprisonment of a person who had not committed a crime. Id.
In the instant case, the petitioner is not in a position similar to the petitioner in Dorsainvil. The petitioner has not established that his remedy by way of a 28 U.S.C. § 2255 motion is inadequate or ineffective to test that legality of his detention. Accordingly, it will be recommended that the petitioner's claims challenging his conviction and sentence be dismissed.
Further, pursuant to 8 U.S.C. § 1252(a)(5) (as amended by the Real ID Act of 2005, Pub.L. 109-13, 119 Stat. 231), this court does not have jurisdiction to consider the petitioner's challenge to his removal order.
8 U.S.C. § 1252(a)(5) provides, in pertinent part:
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter, except as provided in subsection (e) of this section.
Subsection (e) of § 1252, which deals with judicial review of removal orders entered under the expedited removal procedures set forth in 8 U.S.C. § 1225(b)(1), is not applicable in this case. Thus, this court does not have jurisdiction to review the petitioner's removal order.
Section 106(c) of the Real ID Act of 2005, set forth as a note following 8 U.S.C. § 1252, provides that if a 28 U.S.C. § 2241 petition challenging a final order of removal is pending in a district court on the date of enactment [May 11, 2005] of the Act, the district court shall transfer the case (or the part of the case challenging the removal order) to the court of appeals for the circuit in which a petition for review could have been properly filed and the court of appeals shall treat the transferred case as if it had been filed as a petition for review. The petition in the instant case, which was not filed until October 12, 2005, was not pending on May 11, 2005, and, thus, the transfer provision is not applicable in this case.
For the above reasons, we will recommended that the petition for a writ of habeas corpus be dismissed. Given that we do not have jurisdiction to review the petitioner's habeas claims, we will also recommend that the petitioner's motion to stay in which he is seeking an order enjoining the respondents from transferring him to another institution be denied. Moreover, we note that the respondents indicate that they have no intent to transfer the petitioner to another institution.
Based on the foregoing, it is recommended that the petitioner motion (doc. 9) to stay be denied, that the 28 U.S.C. § 2241 petition (doc. 1) for a writ of habeas corpus be dismissed, and that the case file be closed.