MEMORANDUM AND ORDER
KAPLAN, District Judge.1
This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Petitioner Brandon Moses was convicted in the United States District Court for the Southern District of Florida on August 27, 1990 of conspiracy to import cocaine. He was sentenced to 132 months in prison and now is incarcerated in the Federal Correctional Institution at Ray Brook, New York. He claims that the sentencing judge misapplied the Sentencing Guidelines in determining his sentence.
The Government moves to dismiss or, alternatively, for summary judgment dismissing the petition on the ground that this Court lacks subject matter jurisdiction. It is the Government's position that the appropriate vehicle for raising the contention pressed by petitioner is a motion to the sentencing court pursuant to 28 U.S.C. § 2255. The Government further argues that petitioner raised precisely the ground here presented in such a motion, that the motion was denied by the sentencing judge on the recommendation of a Magistrate Judge, and that the issue tendered here is on appeal to the Eleventh Circuit.
In consequence, the Government argues, the petition should be denied in the exercise of discretion even if this Court has subject matter jurisdiction.
Section 2255 of the Judicial Code provides in pertinent part that:
"An application for a writ of habeas corpus 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.