N THE UNITED STATES ISTRICT COURT 


FOR THE 


MIDDLE DIS~RICT 0 ?2~~SYLVANIA 

GUILLERMO RUIZ, 

Petitioner CIVIL NO. 3:CV-15 1612 

v. (Judge Conaboy) FILED 

WARDE~ DAVIJ EBBER~, SCRANTON

Res nt 

MEMORANDUM 

Background 

Guillermo Ruiz, an inmate sently con at the United 

States Penitentiary, Lewisburg, Pennsylvania (USP Lewisburg) 

filed this se habeas corpus petition pursuant to 28 U.S.C. § 

2241. Petitioner has also s tted an in forma 

application ch will be granted r the sole purpose of the 

filing of the petition with this Court. Named as Respondent is 

USP-Lewisburg Warden Javid Ebbert. 

Ruiz states that he was convicted of be a felon in 

possession 0 amrHunition affecting interstate commerce and 

possession of a firearm and silencer without a serial number in 

the United States District Court for the So rn District of 

Florida. On r 19, 1998, Petitioner was sentenced to a 

312 month term of imprisonment. There is no indication that a 

direct appeal was filed. 

1 

Case 3:15-cv-01612-RPC-JVW Document 5 Filed 10/14/15 Page 1 of 6
Petitioner acknowledges that in 2003 he filed a motion 

seeking relief pursuan~ to 28 U.S.C. § 2255 which in part 

challenged the legali y his ACCA sentence enhancement and also 

raised claims of ineffective assistance of counsel and fective 

i ctment. See Doc. 3, ~ 10. According to the Petitioner, his 

§ 2255 motion was di ssed on July 22, 2003 as being time 

barred by the sentencing court. 

Ruiz's pend action asserts that his sentence was 

enhanced under the Career Criminal Act (ACCA) which 

resulted the sition of a "term of imprisonment exceeding 

the authorized statutory maximum penalty." Doc. 1, ~ 5. 

Petitioner, relying upon the June 26, 2015 United States Supreme 

Court de sion in Johnson v. United States, 135 S. Ct 2551 

(2015), argues that the determination that he was s ect to a 

ACCA sentence enhancement was a due process v lation cause 

his federal offense was not a cr of olence or a drug 

offense and he is not a career offender. id. at ':l 13. 

Furthermore, his prior state convictions do not qualify as 

" olent or drug felonies." Doc. 2, p. Ruiz elaborates 

that based upon the holding that the res 1 clause of 

the ACCA was unconstitu~iona1 y vague,l he is entitled to relief 

as his prior state convictions no longer quali as a predicate 

See United States v. Terry, 2015 WL 4255527 (TiL D. Pa. 

July 14, 015) recogni zed that "the catchall definition of 

violent felony in the ACCA is unconstitutionally vague." 

2 


Case 3:15-cv-01612-RPC-JVW Document 5 Filed 10/14/15 Page 2 of 6
offenses for an ACCA enhancement. As relief, Ruiz asks that his 

sentence be reduced to the statutory maximum sentence and he be 

granted immediate release from custody. id., at p. 6. 

Discussion 

A federal prisoner challenging the legality of his or her 

sentence is generally limited to seeking relief by way of a 

motion pursuant to § 2255. 119 F.3d 245, 249 

(3d Cir. 1997); ~~~~~~~~~~~, No. 08-3898, 2009 WL 

1154194, at *2 (3d Cir. l'l.pr. 30, 2009) ("a sec::ion 2255 motion 

fil in the sentencing court is the presumptive means for a 

federal prisoner to challenge the validity of a conviction or 

sentence"). Relief is only available under § 2241 if "it . 

appears tha:: the remedy by [a § 2255] ~otion is inadequate or 

ineffective to test the legality of his detention." 28 U.S.C. § 

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

clause, must be strictly construed. Dorsainvil, 119 F.3d at 

251; Russell, 2009 WL 1154194, at *2 (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 ction for a cri~e later emed 

to be non-criminal by an intervening change in the law"). 

"It is the inefficacy of the , not the personal 

inability to use it, that is erminative." 

~~==' 290 F.3d 536, 538 (3d Cir. 2002). "Section 2255 is not 

3 


Case 3:15-cv-01612-RPC-JVW Document 5 Filed 10/14/15 Page 3 of 6
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 

gate keeping requirements of the amended § 2255." Id. at 539. 

also, Alexander v. Williamson, 2009 t'JL 1020218, at *2 (3d 

Cir. Apr. 16, 2009). 

Ruiz's pending based argument challenges the 

validi of his sentence which was imposed by the Sout rn 

District of Florida. Petitioner does not contend that he is 

actually innocent of the underlying federal criminal offense. 

Rather, he solely contends that his ACCA sentence enhancement 

was improper. Based upon the nature of his claim, Petitioner 

must follow the requirements of § 2255. 

One federal appellate court recently recognized that 

Johnson is a new substantive rule of constitutional law that is 

retroactively applicable in a collateral attack on a final 

conviction. Price v. United States, 2015 WL 4621024 (7tf: 

Cir. Aug. 4, 2015). However, the Tenth Circuit Court of Appeals 

in In Re Gieswein, 2015 F.3d 5534388 * 5 (Sept. 21, 2015) held 

the opposite, deciding that the Supreme Court d not expressly 

state that Johnson applies retroactively. Based upon this 

Court's research, the Third Circuit Court of Appeals has not yet 

addressed this issue. 

4 


Case 3:15-cv-01612-RPC-JVW Document 5 Filed 10/14/15 Page 4 of 6
However, this Court agrees with the approach take~ by 

v. Maiorana, 2015 WL 4663267 *4 (M.D. Pa. Aug. 6, 2015) which 

recog~iz that since § 2255 plai y provides an ave~ue for 

litigating the merits of a Johnson based sentencing claims, such 

an argument should be addressed by the court which is ultimately 

the most appropriate forum, i.e. the sentencing court. n 

the very recent decision of ~~~~, the contrary appr s 

taken to e by the Courts of Appeals regarding the 

retroactivity of ~~~~, and the fact that our Third Circuit 

Court of Appeals has not yet a ss the issue, this Court 

will likewise take the approach suggested by Wood. 

Since Petitioner acknowl s that he previously pursued 

an unsuccessful § 2255 motion, he must obtain certification from 

the appropriate Court of 1s to file another collateral 

challenge to his sentence. However, neither the sentencing court 

nor the Eighth Circuit Court of Appeals have had opportunity to 

address the validity of Light's pending based argument. 

those circumstances, the reasoning set forth in 

, the conflicting approaches taken by the Courts of Appeals 

regarding and Ruiz's failure to demonstrate that he is 

actually innocent if the underlying federal offenses, 

Petitioner's § 2241 petition will be dismissed without 

prejudice. Anderson v. Snyder-~orris, ~o. 15-CV-57, 2015 WL 

5 


Case 3:15-cv-01612-RPC-JVW Document 5 Filed 10/14/15 Page 5 of 6
5174234 *5 (E.D. Ky. sept. 2, 2015), Cockrell v. Kreuger, No. 

1:15-CV-1279, 2015 WL 4648029 (C.D. Ill. Aug. 5, 2015) 

If Petitioner wishes to challenge his ACCA sentence 

enhancement under he may do so by seeking authorization 

from the the appropriate Court of Appeals to file a second or 

successive § 2255 petition regarding his ~ohnson claim. 

An appropriate Order will enter. 

j 

Uhited States District 

DATED: OCTOBER , 2015 

6 


Case 3:15-cv-01612-RPC-JVW Document 5 Filed 10/14/15 Page 6 of 6