Carey v. UNITED STATES OF AMERICA et al

Filing 3

MEMORANDUM Since § 2255 is not inadequate or ineffective to test the legality of Petitioners guilty plea, his § 2241 petition will be dismissed for lack of jurisdiction. Of course, this dismissal has no effect on Petitioners right to file a section 2255 motion with Judge Rambo, or if necessary to obtain authorization from the Third Circuit Court of Appeals to file a second or successive § 2255 petition. An appropriate Order will enter.(See Memorandum)Signed by Honorable Richard P. Conaboy on 7/31/12. (cc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

DAMON TODD CAREY,
Petitioner
v.
UNITED STATES OF AMERICA,
Respondent

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CIVIL NO. 3:CV-12-1443
(Judge Conaboy)

MEMORANDUM
Background
Damon Todd Carey, an inmate presently confined at the
Allenwood Federal Correctional Institution, White Deer,
Pennsylvania (FCI-Allenwood), initiated this pro se petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2241.

The

Petition is accompanied by an in forma pauperis application
(Doc. 2).

Petitioner will be granted leave to proceed in forma

pauperis for the sole purpose of the filing of this action with
this Court.
Named as Respondent is the United States of America.1
Petitioner states that he entered a plea of guilty to a charge
of possession with intent to distribute a controlled substance

1

The only properly named Respondent in a federal habeas
corpus action is Petitioner’s custodial official. See 28 U.S.C. §
2242.
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before Judge Sylvia H. Rambo of this Court.

See United States

v. Carey, 1:08-cr-435 (M.D. Pa.)(Rambo, J.).

He was sentenced

by Judge Rambo on September 2, 2009 to a ten (10) year term of
incarceration.

See Doc. 1, p. 3.

Petitioner adds that he

“never appealed the sentence or the judgement of conviction.”
Id. at p. 2.
A review of the docket from Petitioner’s criminal case
shows that Carey sought relief via a petition pursuant to 28
U.S.C. § 2255 which was deemed withdrawn by the district court
on September 13, 2010.
Carey’s pending action claims entitlement to federal
habeas corpus relief on the grounds that evidence used against
him was obtained via an unconstitutional search and seizure.
Petitioner does not specify what relief he is requesting.
Discussion
Standard of Review
Habeas corpus petitions are subject to summary dismissal
pursuant to Rule 4 (“Preliminary Review”) of the Rules Governing
Section 2254 Cases in the United States District Courts, 28
U.S.C. foll. § 2254 (2004).

See, e.g., Mutope v. Pennsylvania

Board of Probation and Parole, 2007 WL 846559 *2 (M.D. Pa. March
19, 2007)(Kosik, J.).

The provisions of Rule 4 are applicable

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to § 2241 petitions under Rule 1(b)).

See, e.g., Patton v.

Fenton, 491 F. Supp. 156, 158-59 (M.D. Pa. 1979).
Rule 4 provides in pertinent part: “If it plainly appears
from the petition and any attached exhibits that the petitioner
is not entitled to relief in the district court, the judge must
dismiss the petition and direct the clerk to notify the
petitioner.”

A petition may be dismissed without review of an

answer “when the petition is frivolous, or obviously lacking in
merit, or where. . . the necessary facts can be determined from
the petition itself. . . .”

Gorko v. Holt, 2005 WL 1138479

*1(M.D. Pa. May 13, 2005)(McClure, J.)(quoting Allen v. Perini,
424 F.2d 134, 141 (6th Cir. 1970).
Petitioner generally argues that he is entitled to bring
his present claim of an illegal search and seizure in a § 2241
petition because he never filed a direct appeal, did not
previously seek habeas corpus relief, and Ҥ 2241 is the only
remedy available to the Petitioner.”

Doc. 1, p. 2.

When

challenging the validity of a federal sentence and not its
execution,2 a federal prisoner is generally limited to seeking
relief by way of a motion pursuant to § 2255.

In re Dorsainvil,

119 F.3d 245, 249 (3d Cir. 1997); Russell v. Martinez, 325 Fed.

2

A federal prisoner may challenge the execution of his
sentence by initiating an action pursuant to § 2241. See Woodall
v. Federal Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005).
3

Appx. 45, 47 (3d Cir. 2009)(“a section 2255 motion filed in the
sentencing court is the presumptive means for a federal prisoner
to challenge the validity of a conviction or sentence”).

A

challenge can only be brought under § 2241 if “it . . . appears
that the remedy by [a § 2255] motion is inadequate or
ineffective to test the legality of his detention.”
2255(e).

28 U.S.C. §

This language in § 2255, known as the safety-valve

clause, must be strictly construed.

Dorsainvil, 119 F.3d at

251; Russell, 325 Fed. Appx. at 47 (the safety valve “is
extremely narrow and has been held to apply in unusual
situations, such as those in which a prisoner has had no prior
opportunity to challenge his conviction for a crime later deemed
to be non-criminal by an intervening change in the law”).
“It is the inefficacy of the remedy, not the personal
inability to use it, that is determinative.”
States, 290 F.3d 536, 538 (3d Cir. 2002).

Cradle v. United

“Section 2255 is not

inadequate or ineffective merely because the sentencing court
does not grant relief, the one-year statute of limitations has
expired, or the petitioner is unable to meet the stringent
gatekeeping requirements of the amended § 2255.”

Id. at 539.

See also, Alexander v. Williamson, 324 Fed. Appx. 149, 151 (3d
Cir. 2009).

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Petitioner is clearly challenging the validity of his
guilty plea which was entered before Judge Rambo of this Court.
Thus, he must do so by following the requirements of

§ 2255.

As previously noted, Petitioner has already sought relief via a
§ 2255 action which was subsequently deemed withdrawn by Judge
Rambo.
The fact that his prior § 2255 petition was deemed
withdrawn does not render the § 2255 process “inadequate or
ineffective.”

Nor does it make Petitioner’s pending claim

cognizable in a § 2241 action.
Furthermore, Henry’s assertion that his prior claims were
not fairly considered does not authorize this Court to consider
his habeas corpus petition.

His instant illegal search and

seizure claim is not based upon a contention that his conduct is
no longer criminal as a result of some change in the law.

Nor

has Petitioner shown that he is unable to present his claims in
a § 2255 proceeding.

As recognized by the Hon. Kim R. Gibson in

Pollard v. Yost, No. 07-235, 2008 WL 4933599, at *6 (W.D. Pa.
Nov. 18, 2008), for a challenge to a federal conviction to be
presented by a federal inmate by way of a § 2241 petition, there
must not only be “a claim of actual innocence but a claim of
actual innocence coupled with the inability to have brought the
claim before because of a change in the construction of the

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criminal statute by a court having the last word on the proper
construction of the statute, which change rendered what had been
thought to be criminal within the ambit of the statute, no
longer criminal.”

Clearly, Carey’s claim does not fall within

this narrow exception to the general rule that section 2255
provides the exclusive avenue by which a federal prisoner may
mount a collateral challenge to his conviction or sentence.
Levan v. Sneizek, 325 Fed. Appx. 55, 57

See

(3d Cir. April 2009).

Since § 2255 is not inadequate or ineffective to test the
legality of Petitioner’s guilty plea, his § 2241 petition will
be dismissed for lack of jurisdiction.

Of course, this

dismissal has no effect on Petitioner’s right to file a section
2255 motion with Judge Rambo, or if necessary to obtain
authorization from the Third Circuit Court of Appeals to file a
second or successive § 2255 petition.

An appropriate Order will

enter.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge

DATED: JULY 31, 2012
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