The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
MEMORANDUM DECISION and ORDER
The Clerk has sent to the Court a petition for a writ of habeas corpus filed by Jaime Rodriguez ("Petitioner") pursuant to 28 U.S.C. § 2241 (Dkt. No. 1, Part 1), along with a memorandum of law (Dkt. No. 1, Part 2). Petitioner, who is confined at the Federal Correctional Institution at Ray Brook, New York, paid the required filing fee for this action. For the reasons that follow, the petition is dismissed for lack of jurisdiction.
Petitioner brings this action to challenge his 1994 conviction for distributing heroin, possessing with the intent to distribute heroin, and conspiring to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (hereinafter, the "drug trafficking conviction"). (Dkt No. 1, Part 1, at 3.)Petitioner was also convicted of the following four crimes: (1) using and carrying a firearm during, and in relation to, a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (hereinafter, the "firearm conviction"); (2) possessing a firearm with an obliterated serial number that had been shipped in interstate commerce in violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B); (3) conspiring to suborn perjury in violation of 18 U.S.C. §§ 371 and 1622; and (4) conspiring to obstruct justice by preventing testimony through threats and intimidation in violation of 18 U.S.C. §§ 371 and 1512(b). United States v. Hernandez, 85 F.3d 1023, 1032 (2d Cir. 1996).*fn1 Petitioner was sentenced to serve two hundred forty (240) months in prison on the drug trafficking conviction, followed by a statutorily mandated consecutive sentence of sixty (60) months on the firearm conviction. Hernandez, 85 F.3d at 1028; see also United States v. Rodriguez, 93-CR-0549, Amended Judgment (S.D.N.Y. filed Nov. 23, 1994).
On June 11, 1996, the Court of Appeals for the Second Circuit vacated Petitioner's firearm conviction, affirmed the remaining convictions, and remanded the case to permit the district court to consider re-sentencing. Hernandez, 85 F.3d at 1032. On remand, the district court increased Petitioner's sentence on the drug trafficking conviction to three hundred (300) months in prison. (Dkt. No. 1, Part 1, at 3; Dkt. No. 1, Part 2, at 11-12.) See also United States v. Hernandez, No. 96-1619, 1997 WL 383507, at *1 (2d Cir. July 9, 1997) (unpublished decision). On July 9, 1997, the Second Circuit affirmed. Hernandez, 1997 WL 383507, at *1.
On October 7, 1998, Petitioner challenged his conviction pursuant to 28 U.S.C. § 2255, claiming that he received ineffective assistance of counsel, that his due process rights had been violated, and that he was wrongfully convicted as a distributor of narcotics. See Rodriguez v. United States, No. 05-3486-op, Application for Leave to File a Second or Successive Motion to Vacate, Set Aside or Correct Sentence ("Application"), at 3 (2d Cir. filed Jul. 8, 2005) (citing Rodriguez v. United States, 98-CV-7067, Notice of Motion [S.D.N.Y. filed Oct. 7, 1998]). The motion was denied on August 10, 1999. (Dkt. No. 1, Part 1, at 6.) See also Rodriguez, 98-CV-7067, Opinion and Order (S.D.N.Y. filed Aug. 10, 1999).
Petitioner has since applied for permission to file second or successive § 2255 motions in the Second Circuit to no avail. The first application was denied by the Second Circuit on February 6, 2003. Rodriguez, No. 05-3486-op, Application, at 3-4 (citing Rodriguez, No. 01-3706 [2d Cir.]). In that application, Petitioner raised the following three grounds for relief: "1. Title 21 U.S.C. § 841 is unconstitutional, 2. If §841 is constitutional, petitioner was denied constitutional 5th and 6th Amendment right to due process and trial by jury, 3. the Sentencing Guidelines are unconstitutional. If constitutional then a jury must find beyond a reasonable doubt the amount of drugs that determine the MAX Guideline Sentence." Id. at 4. The application was denied on February 6, 2003. Id. (citing Rodriguez, No. 01-3706 [2d Cir. Feb. 6, 2003]).
Petitioner again sought an application to file a second or successive § 2255 motion on July 8, 2005. See Rodriguez, No. 05-3486-op, Application. Petitioner argued that his due process rights were violated "because the court, and not the jury, decided facts which affected the maximum sentence to which petitioner could be exposed, and did so 'by a preponderance of the evidence' rather than 'beyond a reasonable doubt.'" Id. at 5, Ground One. Petitioner argued that his claim was based upon the United States Supreme Court's decisions in Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005). Id.
On August 3, 2005, the Second Circuit denied Petitioner's application. The Court explained that the decisions in Booker and Blakely "do not constitute new rules of constitutional law that have been made retroactive to cases on collateral review by the Supreme Court." Rodriguez, No. 05-3486-op (2d Cir. Aug. 3, 2005) (citing Green v. United States, 397 F.3d 101, 103 [2d Cir. 2005] [addressing Booker's retroactivity] and Carmona v. United States, 390 F.3d 200 [2d Cir. 2004] [addressing Blakely's retroactivity]).
Petitioner next filed a petition for a writ of habeas corpus, this time pursuant to 28 U.S.C. § 2241, in the United States District Court for the Middle District of Pennsylvania on July 31, 2006, while incarcerated at the United States Penitentiary in Lewisburg, Pennsylvania. See Rodriguez v. Williamson, 06-CV-1489, 2006 WL 2803056 (M.D. Pa. Sept. 28, 2006). Petitioner claimed that the Second Circuit's decision in United States v. Gonzales, 420 F.3d 111 (2d Cir. 2005), requiring the issue of the quantity of a drug to be determined by a jury beyond a reasonable doubt, was retroactively applicable to his case. Id. at *1-2. He claimed that the rule in Gonzalez was not a new constitutional rule and did not meet the requirements for filing a second or successive § 2255 petition, rendering § 2255 inadequate to test the legality of his conviction. Id. at *1.
On September 28, 2006, the district court dismissed the petition for lack of jurisdiction. It explained that Petitioner could challenge his underlying conviction under § 2241, instead of § 2255, "only in very rare circumstances," and that, under Third Circuit precedent, a change in statutory interpretation that affected sentencing only "would not permit a petition under § 2241." Rodriguez, 2006 WL 2803056, at *3 (citing Okereke v. United States, 307 F.3d 117, 120-21 [3d Cir. 2002], cert. denied, 537 U.S. 1038 ), aff'd, No. 06-5036, 238 F. App'x. 768, 2007 WL 2050880 (3d Cir. Jul. 18, 2007), cert. denied, No. 07-6695 (U.S. Nov. 14, 2007).
Petitioner again sought permission in the Second Circuit to file a second or successive § 2255 motion on August 1, 2007, in which he raised the same claims that he now raises in his pending habeas petition. The motion was denied on August 28, 2007. (Dkt. No. 1, Part 2, at 2 n.1 [citing Rodriguez, No. 07-3292-op (2d Cir. Aug. 28, 2007)]).
On October 3, 2007, Petitioner challenged his conviction by filing a petition in the Southern District of New York "Pursuant to 28 U.S.C. § 1651." See Rodriguez v. United States, 07-CV-8567, Motion to Vacate, Set Aside or Correct Sentence (S.D.N.Y. filed Oct. 3, 2007). In a Transfer Order dated October 3, 2007, the district court construed the petition as one brought pursuant to 28 U.S.C. § 2255, and directed that the petition be transferred to the Second Circuit for a determination of whether Petitioner should be permitted to proceed in the district court with a second or successive petition. See Rodriguez v. United States, 07-CV-8567, Transfer Order (S.D.N.Y. filed Oct. 3, 2007).*fn2 On March 20, 2008, the Second Circuit denied permission because Petitioner failed to file an application requesting that the court authorize a second or successive habeas petition. Rodriguez v. United States, No. 07-5424-op, Mandate (2d Cir. filed Mar. 20, 2008).
Finally, Petitioner filed a Notice of Motion under Rule 36 for Correction of Judgment in the Southern District of New York on April 2, 2009. See United States v. Rodriguez, 93-CR-0549, Notice of Motion (S.D.N.Y. filed Apr. 2, 2009). That motion, ...