The opinion of the court was delivered by: Thomas J. McAVOY, Senior District Judge
Presently before the Court is a Petition for habeas corpus brought by Alonzo Voelker ("Petitioner") pursuant to 28 U.S.C. § 2241. Dkt. No. 1. Petitioner has paid the filing fee for this action.
Petitioner, who is confined at the Federal Correctional Institution at Ray Brook, New York, brings this action to challenge his April 15, 2000 conviction, upon a plea of guilty to three counts of distribution of cocaine base and one count of conspiracy to distribute cocaine base, and the sentence imposed thereon by the United States District Court for the District of Rhode Island. Dkt. No. 1. Pursuant to a Plea Agreement, which is annexed to the Petition, Petitioner was sentenced to 188 months incarceration.*fn1
Petitioner's convictions and sentence were affirmed by the United States Court of Appeals for the First Circuit. Petitioner states that he filed a Motion pursuant to 28 U.S.C. § 2255 in the sentencing court that was denied. See Voelker v. United States, 2003 WL 22423198 (D.R.I. Oct. 21, 2003)(Torres, C.J.).
In his Petition, Petitioner claims that he is entitled to have his plea vacated, and to be resentenced. According to Petitioner, the sentencing court determined that his sentence could properly be enhanced on the basis of facts which were not charged in the indictment, admitted by the petitioner, nor found by a jury. Relying on the recent decisions of the United States Supreme Court in Blakely v. Washington, 542 U.S. 296 (2004), United States v. Booker, 540 U.S. 220 (2005), and Shepard v. United States, 544 U.S. 13 (2005), Petitioner alleges that he is entitled to "specific plea performance" and alleges that he is actually innocent of the factors used to enhance his sentence.*fn2 Dkt. No. 1.
A. Section 2255 and Section 2241
A prisoner in custody under sentence of a federal court who wishes to collaterally attack the validity of his conviction or sentence may file a motion in the sentencing court pursuant to 28 U.S.C. § 2255. See 28 U.S.C. § 2255; Adams v. United States, 372 F.3d 132, 134 (2d Cir. 2004); Chambers v. United States, 106 F.3d 472, 474 (2d Cir. 1997).
That right, however, is not unlimited. Rather, § 2255 contains a gatekeeping provision that limits a Petitioner's ability to file a second or successive § 2255 Motion. The statute provides, in pertinent part, that
[a] second or successive motion must be certified as provided in section 2244 by a panel of the appropriate 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, ...