The opinion of the court was delivered by: Gary L. Sharpe, U.S. District Judge
The Clerk has sent to the Court a petition for writ of habeas corpus and an application to proceed in forma pauperis, brought by Kevin Wongus ("petitioner" or "Wongus") pursuant to 28 U.S.C. § 2241. Petitioner is presently confined at the Federal Correctional Institution in Ray Brook, New York and has not paid the statutory fee required to maintain the instant action.
In this habeas petition, Wongus states that he was sentenced in the United States District Court for the Eastern District of Pennsylvania to 15 years imprisonment due to his conviction for possession of a firearm by a convicted felon, pursuant to 18 U.S.C. §922(g)(1). Petitioner states he appealed from the conviction and sentence and his appeal was denied by the Third Circuit. Petitioner also states that he was denied certiorari by the United State Supreme Court.
Wongus challenged his federal conviction pursuant to 28 U.S.C. § 2255 ("Section 2255"). The United States District Court for the Eastern District of Pennsylvania denied his motion which was based upon claims of ineffective assistance of counsel and newly discovered evidence.*fn1
By the present application, petitioner seeks an order vacating his sentence. The ground for the petition is that the jury did not determine whether he had a prior conviction, and thus the sentencing court could not enhance his sentence based upon any such conviction. Petitioner does not allege, nor offer any evidence, that he had not been previously convicted of the charge that the sentencing court relied upon.
A. Challenges to Federal Sentence Under Section 2255
A motion to the sentencing court pursuant to Section 2255 is generally the appropriate vehicle for challenging a sentence imposed by a federal court. 28 U.S.C. § 2255; United States v. Hayman, 342 U.S. 205, 217 (1952). As stated above, Wongus previously filed a Section 2255 petition, which was denied by the United States District Court for the Eastern District of Pennsylvania. Since petitioner does not indicate that he has been authorized to file a second Section 2255 application by the Court of Appeals for the Circuit, as is required under Section 2255, petitioner is not entitled to relief under this section.
B. Section 2255's Savings Clause
There is an exception to the bar against a federal prisoner using a § 2241 petition to collaterally attack a federal conviction. Pursuant to the "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 validity of his detention." 28 U.S.C. § 2255; see Triestman v. United States, 124 F.3d 361 (2d Cir. 1997).
The § 2255 "savings clause" was discussed at length by the Second Circuit in Triestman. The Circuit cautioned that the remedy provided by the savings clause 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). This interpretation of § 2255's savings clause limits habeas relief to those circumstances where § 2255's remedy is unavailable and the "failure to allow for collateral review would raise serious constitutional questions." Triestman, 124 F.3d at 377.*fn2 Therefore, where a petitioner claims that the § 2255 remedy is not available, and also asserts a claim of actual innocence that can be proved upon the existing record and could not have been asserted earlier, § 2255's savings clause allows for habeas review. See Poindexter v. Nash, 333 F.3d 372, 378 (2d Cir. 2003); see also Cephas v. Nash, 328 F.3d 98, 104 (2d Cir. 2003).*fn3
In a sentencing context, "to qualify for the 'actual innocence' exception, a petitioner must prove that 'but for the constitutional error, [petitioner] would not have been legally eligible for the sentence received." Borrego v. Untied States, 975 F. Supp. 520, 525 (S.D.N.Y. 1997) citing Sawyer v. Whitley, 505 U.S. 333, 348 (1992). In other words, petitioner must allege and prove that a constitutional violation resulted in his sentence, demonstrate by clear and convincing evidence that he is innocent of the facts used to impose his sentence,*fn4 and, prove that the sentence imposed exceeds the maximum permitted by statute. Id. However, petitioner has set forth nothing to demonstrate that he is actually innocent of the acts which he claims were used to enhance his sentence.*fn5 Thus, the Court finds that the § 2255 savings clause does not apply here and this Court lacks jurisdiction to entertain the § 2241 petition.
As noted above, petitioner previously filed a § 2255 Motion in the United States District Court for the Eastern District of Pennsylvania, which was denied. Pursuant to § 2255, he may not file a second or successive motion unless he first receives permission from the United States Court of Appeals for the Third Circuit to do so. See 28 U.S.C. § 2255. Petitioner does not claim to have sought the necessary certification from the Third Circuit, nor does he offer any explanation for his failure to seek such permission. Moreover, even if the Third Circuit Court of Appeals was to certify a second or ...