UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

:

CANICE DIKE, :

Petitioner : No. 4:CV-04-2143

:

vs. : (Petition Filed 09/27/04)

:

: (Judge Muir)

UNITED STATES OF AMERICA, :

:

Respondents :

ORDER

July 12, 2005

Canice Dike, an inmate presently confined in the

Allenwood Federal Correctional Institution, White Deer,

Pennsylvania, filed this pro se petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2241. The required filing fee

has been paid. A response and traverse having been filed, the

petition is ripe for disposition. For the reasons set forth

below, the petition for writ of habeas corpus will be

dismissed. 

Background

In November, 1993, following a jury trial in the United

States District Court for the Eastern District of

Pennsylvania, Dike was convicted of conspiring to distribute

heroin, in violation of 21 U.S.C. § 846; travel and aiding and

abetting travel in interstate and foreign commerce to

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 On January 19, 1993, Dike pled guilty to conspiracy to

possess with intent to distribute heroin in violation of 21

U.S.C. § 846; possession with intent and aiding and abetting

in possession with intent to distribute heroin, in violation

of 21 U.S.C. § 841(a) and 18 U.S.C. § 2;importing and aiding

and abetting the importation of heroin, in violation of 21

U.S.C. §§ 952(a) and 960(a)(1) and 18 U.S.C. § 2; and

possession with intent to distribute heroin near a school in

violation of 21 U.S.C. § 860(a). (Doc. No. 15, Ex. 3,

criminal docket). On February 22, 1999, Dike was sentenced to

an eighty month term of imprisonment, to run concurrently with

the sentenced imposed in May, 1995, followed by an eight year

term of supervised release. (Doc. 15, Ex. 3 at p. 9). On

June 27, 2000, the Third Circuit Court of Appeals affirmed

Dikes conviction and sentence. United States vs. Dike, 225

F.3d 651 (3d Cir. 2000). On October 9, 2001, the United

States Supreme Court denied Dike's petition for writ of

(continued...)

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facilitate narcotics trafficking in violation of 18 U.S.C. §§

1952(a)(3)and (2); three counts of importing and aiding and

abetting the importation of heroin, in violation of 21 U.S.C.

§§ 952(a) and 960(a)(1) and 18 U.S.C. § 2; and three counts of

possession with intent to distribute heroin in violation of 21

U.S.C. § 841(a)(1) and 18 U.S.C. § 2. (Doc. No. 15, Ex. 1,

criminal docket sheet). After the trial, by Order dated

November 30, 1993, the trial court granted the government's

motion to dismiss count 1 of the indictment, conspiracy to

distribute heroin. (Doc. No. 15, Ex. 1, p. 8). On May 2,

1995, Dike was sentenced to a term of imprisonment of 190

months followed by five years of supervised release.1 (Doc.

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1

(...continued)

certiorari. Dike vs. United States, 534 U.S. 968 (2001). On

June 25, 2001, Dike filed a motion to vacate, set aside or

correct sentence, pursuant to 28 U.S.C. § 2255. (Doc. No. 15,

Ex. 3 at p. 10). On October 22, 2002, the district court

denied Dike's 2255 motion, as well as his application for a

certificate of appealability. (Doc. No. 15, Ex. 3 at p. 11). 

3

No. 15, Ex. 1, p. 14). 

On May 11, 1995, Dike filed a direct appeal from his

conviction to the United States Court of Appeals for the Third

Circuit. Id. On October 9, 1996, the Court of Appeals

affirmed Dike's conviction and sentence. United States vs.

Ebo, 101 F.3d 692 (3d Cir. 1996). On October 6, 1997, the

United States Supreme Court denied Dike's petition for writ of

certiorari. Dike vs. United States, 522 U.S. 835 (1997). 

On October 8, 1997, Dike filed a pro se motion to vacate,

set aside, or correct sentence pursuant to 28 U.S.C. § 2255.

(Doc. No. 15, Ex. 1, p. 16). On May 3, 1999, the sentencing

court denied Dike's 2255 motion, and on June 21, 2000, denied

his subsequent motion for a certificate of appealability. Id.

at 17-18. Dike then filed a motion to file a second or

successive motion under 28 U.S.C. § 2255. By Order dated

April 30, 2001, the Court of Appeals denied petitioner's

motion. USA vs. Dike, No. 00-1667 (3rd Cir. 2001). On

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2 In Blakely, the Supreme Court held that a Washington

state sentencing scheme offended the Sixth Amendment because

it deprived the defendant of his constitutional right to a

jury trial determination. The Supreme Court held that:

the “statutory maximum” for Apprendi purposes is the

maximum sentence a judge may impose solely on the

basis of facts reflected in the jury verdict or

admitted by the defendant. In other words, the

relevant “statutory maximum” is not the maximum

sentence a judge may impose after finding additional

facts, but the maximum he may impose without any

additional findings.

Id. at 2537 (internal citations omitted).

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September 28, 2004, Dike filed a motion to recall the Court's

mandate, in light of Blakely vs. Washington, 542 U.S. 296, 124

S.Ct. 2531 (2004). Id. By Order dated October 18, 2004, the

Court of Appeals denied the motion to recall the mandate. Id.

On February 16, 2005, Dike filed a second motion to recall the

mandate, based on United States vs. Booker, U.S. , 125

S.Ct. 738 (2005). Id. By Order dated June 14, 2005, the Court

of Appeals denied the motion to recall the mandate. Id. 

On September 27, 2004, Dike filed the instant petition

for writ of habeas corpus in which he avers that his

conviction and sentence are in violation of the United States

Supreme Court’s holding in Blakely,542 U.S. 296, 124 S.Ct.

2531 (2004).2 He claims he is entitled to seek § 2241 relief

under the § 2255 savings clause based on the subsequent change

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in the law as articulated in Blakely. In his petition, he

suggests Blakely is an intervening change in the law which he

cannot raise in a section 2255 motion, and as such, a section

2255 motion is “inadequate or ineffective” to address this

issue. 

Discussion

“[T]he usual avenue for federal prisoners seeking to

challenge the legality of their confinement” is a section 2255

motion. In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997). A

challenge to either the validity of a conviction or to a

sentence must be brought in the sentencing court by way of a

section 2255 motion. See United States vs. Miller, 197 F.3d

644, 648 n.2 (3d Cir. 1999); Snead vs. Warden, F.C.I.

Allenwood, 110 F. Supp. 2d 350, 352 (M.D. Pa. 2000) (Caldwell,

J.). Here, petitioner is clearly challenging his conviction

and sentence based on the “new ruling” announced in Blakely,

supra. Thus, his proper avenue of relief is a section 2255

motion filed in the district court where he was convicted and

sentenced. See section 2255 ¶ 5 (the motion must be filed in

“the court which sentenced him”).

A defendant can pursue a § 2241 petition only when he

shows that the remedy under section 2255 would be “inadequate

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or ineffective to test the legality of his detention.” 28

U.S.C. § 2255 ¶ 5; see also United States vs. Brooks, 230 F.3d

643, 647 (3d Cir. 2000). The claimed inadequacy or

ineffectiveness of § 2255 must be a “limitation of scope or

procedure...prevent[ing] a Section 2255 proceeding from

affording...a full hearing and adjudication of [a] wrongful

detention claim.” Okereke vs. United States, 307 F.3d 117, 120

(3d Cir. 2002) (citing Cradle vs. United States ex rel. Miner,

290 F.3d 536, 538 (3d Cir. 2002) (per curiam)). “It is the

inefficacy of the remedy, not a personal inability to utilize

it, that is determinative.” Cradle, 290 F.3d at 538 (citing

Garris vs. Lindsay, 794 F.2d 722, 727 (D.C. Cir. 1986)); see

also Jeffers vs. Chandler, 253 F.3d 827, 830 (5th Cir.

2001)(“A prior unsuccessful § 2255 motion or the inability to

meet the requirements for a second or successive 2255 motion

“does not make § 2255 inadequate or ineffective.”). Section

2241 should not be used as a way of evading the gatekeeping

requirements of section 2255. Brown vs. Mendez, 167 F. Supp.

2d 723, 727 (M.D. Pa. 2001). If a petitioner improperly

challenges a federal conviction or sentence under § 2241, the

petition must be dismissed for lack of jurisdiction.

Application of Galante, 437 F.2d 1164, 1165 (3d Cir. 1971).

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Initially, the Court notes that the petitioner has failed

to show that the Supreme Court intended Blakely to be applied

retroactively to cases on collateral appeal. Whether a “new

rule” applies retroactively to final convictions generally

depends on whether the rule announced by the Supreme Court is

substantive or procedural. New substantive rules generally

apply retroactively while new procedural rules generally do

not unless they implicate the fundamental fairness and

accuracy of criminal proceedings. See Schriro vs. Summerlin,

124 S. Ct. 2519, 2523 (2004)(“New rules of procedure generally

do not apply retroactively. They do not produce a class of

persons convicted of conduct the law does not make criminal,

but merely raise the possibility that someone convicted with

use of the invalidated procedure might have been acquitted

otherwise.”); see also Teague vs. Lane, 489 U.S. 288 (1989).

Thus far, there is no Supreme Court precedent announcing

that Blakely is to be applied retroactively, i.e. it is

available as a means of relief for cases other than those that

were on direct appeal when it was decided (June 24, 2004).

Likewise, the Court of Appeals for the Third Circuit has not

addressed this issue. However, it is clear that Blakely is

simply an application and extension of the new constitutional

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rule of criminal procedure the Supreme Court announced in

Apprendi vs. New Jersey, 530 U.S. 466 (“‘[o]ther than the fact

of conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to

a jury, and proved beyond a reasonable doubt.’”) 

The Court of Appeals for the Third Circuit has held that

Apprendi is not to be applied retroactively to cases on

collateral review. See United States vs. Swinton, 333 F.3d

481, 485-87 (3d Cir.2003). Thus, as Blakely is a direct

descendant of Apprendi, it too is a procedural rule of law

that is not retroactive to criminal cases on collateral

review. See United States vs. Price, 400 F.3d 844 (10th Cir.

2005); Varela vs. United States, 400 F.3d 864 (11th Cir. 2005);

Green vs. United States, 397 F.3d 101(2d Cir. 2005)(per

curiam); McReynolds vs. United States, 397 F.3d 479 (7th Cir.

2005); In re Kirkland, No. 04-3125, 2005 WL 181890 (D.C. Cir.

Jan. 27, 2005). 

In light of the substantial precedent from several

Courts of Appeals that Blakely does not apply retroactively to

cases on collateral review, this Court also finds the same.

Thus, relief via the possible application of Blakely is

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 The Court of Appeals for the Third Circuit has also held

that United States vs. Booker, 125 S. Ct. 738 (2005), which

recognized that Apprendi and Blakely applied to the United

States Sentencing Guidelines, but also ruled that the

Guidelines are now only advisory, does not apply retroactively

to cases on collateral review. See United States vs. West, No.

04-3881, slip op. at 2 n.1 (3d Cir. March 4,2005).

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unavailable to Dike.3

Moreover, to the extent that Dike has sought, and been

denied, permission by the Court of Appeals for the Third

Circuit to file a second § 2255 motion, section 2255 is not

inadequate or ineffective merely because Dike is unable to

meet the gatekeeping requirements for filing a second § 2255

motion. In re Dorsainvil, 119 F.3d at 251.

Blakely does not place Dike in the narrow exception of

those eligible to file a section 2241 petition as recognized

in Dorsainvil, supra. Dorsainvil requires a precedent that

makes the conduct of conviction non-criminal. The Court of

Appeals for the Third Circuit has held that the Dorsainvil

rationale does not permit pursuit of Apprendi claims by way of

§ 2241 petitions:

Unlike the intervening changes in law in In re

Dorsainvil that potentially made the crime for which

that petitioner was convicted non-criminal, Apprendi

dealt with sentencing and did not render [drug

trafficking], the crime for which Okereke was

convicted, not criminal. Accordingly, under our In

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re Dorsainvil decision, § 2255 was not inadequate or

ineffective for Okereke to raise his Apprendi

argument.

Okereke, 307 F.3d at 120-121. Petitioner finds himself in a

very similar situation. Dike was convicted of possession with

intent to distribute heroin in violation of 21 U.S.C.A. §§

841(a)(1). He does not contend he did not possess heroin with

the intent to distribute it. Thus, Dike's claims do not fall

within the narrow opening for § 2241 review in the district of

confinement created in Dorsainvil. Since it cannot be said

that § 2255 is inadequate or ineffective to test the legality

of Dike's detention or sentence, his § 2241 petition must be

dismissed.

Finally, because Dike is not detained because of

process issued by a state court and the petition is not

brought pursuant to 28 U.S.C. § 2255, no action by this court

with respect to a certificate of appealability is necessary.

IT IS THEREFORE ORDERED THAT:

 1. The petition for writ of habeas corpus is

DISMISSED without prejudice.

2. The Clerk of Court is directed to CLOSE

this case.

 s/Malcolm Muir 

MUIR

United States District Judge

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