The opinion of the court was delivered by: Lawrence E. Kahn, United States District Judge
MEMORANDUM-DECISION AND ORDER
On August 31, 1993, Kevin Blackmon ("Blackmon"), a prisoner at FCI Ray Brook, New York, was convicted in the U.S. District Court for the District of Connecticut of conspiracy to distribute and the distribution of 500 or more grams of cocaine in violation of 21 U.S.C §§ 841(a)(1) and 846, and was sentenced to 292 months in prison. Blackmon's conviction and sentence were affirmed by the Second Circuit. See United States v. Jackson, 60 F.3d 128 (2d Cir. 1995). On June 30, 1997, Blackmon filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in the sentencing court. This motion was dismissed as untimely on October 10, 1997. In the instant petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2241, Blackmon challenges the length of his sentence. In particular, Blackmon asserts that under the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000),*fn1 he is entitled to have his sentence reduced from 292 months to not more than 240 months. Presently pending is Respondent's motion to dismiss the petition for lack of subject matter jurisdiction. Blackmon opposes the motion.
On September 30, 2002, the Honorable Randolph F. Treece, United States Magistrate Judge, filed a Report-Recommendation pursuant to 28 U.S.C. § 636(b), recommending that the petition be dismissed. Blackmon has submitted objections to the Report-Recommendation. It is the duty of this Court to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b). "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." Id. While this Court largely agrees with Magistrate Judge Treece's findings, it presents its own analysis in order to clarify some aspects of the Report-Recommendation.
The Second Circuit has explained the difference between a petition brought under § 2241 and a motion brought under § 2255:
A motion pursuant to § 2241 generally challenges
the execution of a federal prisoner's sentence. . . .
In contrast, § 2255 is generally the proper
vehicle for a federal prisoner's challenge to his
conviction and sentence, as it encompasses claims 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
Jiminian v. Nash, 245 F.3d 144
, 146-47 (2d Cir. 2001) (quoting 28 U.S.C. § 2255) (emphasis in original). The instant petition challenges the legality of the length of Blackmon's sentence. This argument is properly brought in a § 2255 motion.
However, § 2255 contains a "savings clause" which allows a petitioner to challenge the legality of his sentence in a § 2241 petition if § 2255 would be "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255; see also Jiminian, 245 F.3d at 147. The burden of establishing that relief under § 2255 is inadequate or ineffective rests with the petitioner. Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001) (citation omitted); United States v. Lurie, 207 F.3d 1075, 1078 (8th Cir. 2000) (citing Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999)). The Second Circuit has held that § 2255 is inadequate or ineffective when "`the petitioner cannot, for whatever reason, utilize § 2255, and . . . the failure to allow for collateral review would raise serious constitutional questions." Jiminian, 245 F.3d at 147 (2d Cir. 2001) (quoting Triestman v. United States, 124 F.3d 361, 373 (2d Cir. 1997)). For example, serious constitutional questions arise when a petitioner is barred from utilizing § 2255 to present a previously unavailable claim of actual innocence. Triestman, 124 F.3d at 380.
Blackmon cannot utilize § 2255 because he has already brought a § 2255 motion which was dismissed on the merits and his Apprendi claim does not satisfy the gatekeeping requirements of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") for a second or successive § 2255 motion.
Under the AEDPA's gatekeeping provisions, a "second or successive" § 2255 motion may not be filed after the dismissal of an earlier such motion on the merits unless permission to do so is granted by the appropriate court of appeals. See 28 U.S.C. § 2255; see also Jiminian, 245 F.3d at 146. Blackmon argues that the instant petition should not be considered a second motion because the dismissal of his previous motion on the grounds that it was untimely should not be considered a dismissal "on the merits." Whether "the dismissal of a habeas petition or § 2255 motion as time-barred constitutes a final adjudication on the merits" has yet to be decided by the Second Circuit. Ching v. United States, 298 F.3d 174, 179 n. 3 (2d Cir. 2002).
The dismissal of a petition "on technical procedural grounds" or because it presents unexhausted claims is not considered a dismissal "on the merits." See Graham v. Costello, 299 F.3d 129, 133 (2d Cir. 2002) ("When a petition is dismissed because it is procedurally defective or because it presents unexhausted claims, we do not consider it to have been denied `on the merits'. . . ."); Muniz v. United States, 236 F.3d 122, 127-28 (2d Cir. 2001) (stating that a petition that is dismissed for "technical procedural reasons" is not counted as a first petition). In contrast, "a denial on grounds of procedural default constitutes a disposition on the merits and thus renders a subsequent . . . § 2255 motion `second or successive' for purposes of the AEDPA." Carter v. United States, 150 F.3d 202, 205-06 (2d Cir. 1998) (finding that the denial of a § 2255 motion was "on the merits" where denial was on the grounds that the motion's sole claim was not raised at movant's trial or on appeal from his conviction and movant failed to show cause for and prejudice arising from his failure to do so).
Unlike § 2255 motions that are procedurally defective or assert unexhausted claims, untimely § 2255 motions cannot be cured and resubmitted. Untimely motions resemble motions that improperly assert claims never raised at the movant's trial or on direct appeal because "regardless of their merit, [they] can never establish a basis of habeas relief." Graham, 299 F.3d at 133. This Court finds that the denial of a § 2255 motion on the grounds that the motion is untimely constitutes a denial "on the merits," rendering subsequent § 2255 motions "second or successive" under the AEDPA.
Under the AEDPA, the appropriate court of appeals may grant leave to file a second or successive § 2255 motion if the motion relies on "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. The Second Circuit has held because the United States Supreme Court has not made Apprendi retroactive to cases on collateral review, the requirements of § 2255 are not satisfied by a motion to file a second or successive § 2255 motion that relies on Apprendi. See Forbes v. United States, 262 F.3d 143, 145-46 (2d Cir. 2001) (finding that Apprendi cannot provide the basis for a second or successive § 2255 motion). Accordingly, Blackmon cannot utilize § 2255 to assert the claims now before this Court.
Blackmon does not explain how "serious constitutional questions" will arise if he cannot challenge his sentence in light of Apprendi. Unlike the petitioner in Triestman, Blackmon does not claim that he is actually innocent. In addition, as noted above, the Second Circuit has held that Apprendi does not provide grounds for the filing of a second or successive § 2255 motion. See Forbes, 262 at 145-46. While the Second Circuit has not decided whether Apprendi applies retroactively to first habeas petitions, courts in the Northern District of New York, including this one, have held that it does not. See, e.g., Wright v. United States, 166 F. Supp.2d 702 (N.D.N.Y. 2001); see also Murray v. Warden FCI Raybrook, 2002 WL 31741247, at *3 n. 4 (Dec. 5, 2002 N.D.N.Y.) (Sharpe, M.J., Report & Recommendation) (collecting cases). In maintaining that § 2255 is ineffective or inadequate, Blackmon is in effect arguing that the decisions refusing to apply Apprendi retroactively themselves raise serious constitutional questions. This conclusion is obviously untenable. Indeed, these decisions foreclose Blackmon's argument. Accordingly, this Court holds that Blackmon's inability to utilize § 2255 to challenge his ...