UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
April 20, 2006
RANDY HAMPTON, PETITIONER,
T.R. CRAIG, RESPONDENT.
The opinion of the court was delivered by: Gary L. Sharpe, United States District Judge
DECISION and ORDER
Presently before the Court is a petition for habeas corpus brought by Petitioner Randy Hampton pursuant to 28 U.S.C. § 2241. Dkt. No. 1. Petitioner has paid the filing fee required for this action. Petitioner, who is confined at the Federal Correctional Institution at Ray Brook, New York, brings this action to challenge a sentence imposed by the United States District Court for the Southern District of New York. Petitioner was convicted on April 1, 1996 and sentenced to a term of 360 months imprisonment. Dkt. No. 1, Petition at 2. Petitioner does not indicate whether he appealed from his conviction and sentence. According to Petitioner, he filed a motion, pursuant to 28 U.S.C. § 2255 in the sentencing court, which that court denied on January 22, 2003. Dkt. No. 1, Memorandum of Law at 3.
In support of his Petition, Petitioner relies upon Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000);*fn1 Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004);*fn2 and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005).*fn3 Petitioner asserts that his sentence enhancements violate his Sixth Amendment right to a jury trial, and that he is therefore entitled to resentencing. Dkt. No. 1, Memorandum of Law at 4.*fn4
A. Section 2255 and Section 2241
A prisoner in custody under sentence of a federal court who wishes to attack the validity of his conviction or sentence collaterally 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. In pertinent part, this statute provides 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, that was previously unavailable.
28 U.S.C. § 2255.
By contrast, a petition pursuant to 28 U.S.C. § 2241 is the proper vehicle to challenge the execution of a sentence. See Adams, 372 F.3d at 135; 28 U.S.C. § 2241. For example, a petitioner may use a § 2241 petition to challenge a federal official's computation of a sentence, parole decisions, or prison disciplinary actions. See Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001) (citation omitted). A federal prisoner, however, generally may not seek relief from his conviction or sentence pursuant to a § 2241 petition.
B. Section 2255's Savings Clause
There is an exception to the bar against a federal prisoner using a § 2241 petition to attack a federal conviction collaterally. Pursuant to the so-called "savings clause" of § 2255, a federal prisoner may seek relief under § 2241 if he can show that his remedy under § 2255 "is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255; see Triestman v. United States, 124 F.3d 361 (2d Cir. 1997).
The Second Circuit discussed this "savings clause" provision at length in Triestman and cautioned that its remedy is narrow and exists solely "to preserve habeas corpus for federal prisoners in those extraordinary instances where justice demands it." Triestman, 124 F.3d at 378 (citations omitted).*fn5 In other words, this interpretation of § 2255's savings clause would appear to limit habeas relief to those circumstances in which § 2255's remedy is unavailable and the "failure to allow for collateral review would raise serious constitutional questions." Triestman, 124 F.3d at 377. Therefore, where a petitioner claims that § 2255's remedy is not available and also asserts a claim of actual innocence which he can prove based upon the existing record and which he could not have asserted earlier, § 2255's savings clause allows for habeas review. See Poindexter v. Nash, 333 F.3d 372, 378 (2d Cir.2003) (quotation omitted); Cephas v. Nash, 328 F.3d 98, 104 (2d Cir. 2003) (quotation and footnote omitted).*fn6
C. Petitioner's Claims
Petitioner alleges that his sentence is being executed in violation of the 5th and 6th Amendments to the United States Constitution because the sentence was based upon an indictment that "failed to plead a specific drug quantity with sufficient specificity." Dkt. No. 1, Petition at 3. Petitioner claims that his sentence was unconstitutionally "enhanced based upon un-charged conduct." Id. Finally, Petitioner alleges that his "sentence was imposed in excess of the statutory maximum of the offenses as determined by the jury." Id. at 4. These assertions clearly challenge the imposition of his sentence and not its execution. Thus, Petitioner's remedy lies with § 2255 unless he can establish his right to proceed under § 2255's savings clause, thereby permitting him to bring this petition pursuant to § 2241.
Petitioner acknowledges that he previously filed a § 2255 motion in the United States District Court for the Southern District of New York, which that court denied. See Dkt. No. 1, Petition at 2. Thus, pursuant to § 2255, he may not file a second or successive motion unless he first receives the Second Circuit's permission to do so. See 28 U.S.C. § 2255. Petitioner does not claim that he sought the necessary certification from that court.*fn7
The Court notes that Petitioner's chances of receiving such permission from the Second Circuit on these issues is unlikely. The Second Circuit has ruled that Apprendi does not apply retroactively to cases, like this one, on collateral review. See Coleman v. U.S., 329 F.3d 77, 82 (2d Cir. 2003) (Apprendi is a new criminal procedural rule that does not apply retroactively to initial 2255 motions for habeas relief); Forbes v. U.S., 262 F.3d 143 (2d Cir. 2001) (Apprendi is a new rule of constitutional law which has not been made retroactive by the Supreme Court to second or successive § 2255 motions for relief ). The Second Circuit has reached the same conclusion with respect to Blakely. See Green v. United States, 397 F.3d 101 (2d Cir. 2005).*fn8
Additionally, the Second Circuit has also held that Booker does not apply retroactively to cases that have reached final resolution. See Green v. United States, 397 F.3d 101, 103 (2d Cir. 2005); see also Mincone v. United States, 353 F. Supp.2d 316, 318 (N.D.N.Y. 2005) (Munson, S.J); United States v. Reyes, No. 90-CR-584-01CSH, 2005 WL 427578 *1 (S.D.N.Y. Feb. 23, 2005).*fn9
Rather than applying to the Circuit for permission to file a second or successive § 2255 motion, Petitioner seeks to invoke § 2255's savings clause as the jurisdictional basis for his current § 2241 petition. In this case, however, nothing in Petitioner's application establishes that Petitioner's § 2255's remedy would be inadequate or ineffective in addressing the legality of his detention. Moreover, although it appears that § 2255's remedy may be unavailable to Petitioner, that alone does not establish that this remedy is inadequate or ineffective. Furthermore, this Court concludes that its denial of Petitioner's request to proceed under § 2255's savings clause does not raise a "serious constitutional question." Love, 333 F.3d at 73.*fn10 Therefore, the Court finds that § 2255's savings clause does not apply to this case, and this Court lacks jurisdiction to entertain Petitioner's § 2241 petition.*fn11
Finally, the Court notes that in Tyler v. Cain, 533 U.S. 656 (2001), the Supreme Court considered the question of whether new rules of constitutional law apply retroactively to second or successive petitions and concluded that "a new rule is not 'retroactive to cases on collateral review' unless the Supreme Court holds it to be retroactive." Id. at 663 (emphasis added) (footnote omitted). Thus, until the Supreme Court holds that Apprendi and/or Blakely and/or Booker apply retroactively to cases on collateral review, Petitioner cannot raise challenges based thereon as a basis for a second or successive § 2255 motion or a § 2241 petition. Accordingly, the Court dismisses Petitioner's petition without prejudice.*fn12
WHEREFORE, it is hereby ORDERED, that Petitioner's petition is DISMISSED WITHOUT PREJUDICE; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Order on Petitioner.