1

UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

FREDDIE D. WIDENER, :

Petitioner :

:

v. : CIVIL NO. 4:CV-05-1607

:

: (Judge McClure) 

JOSEPH SMITH, WARDEN, :

Respondent :

:

MEMORANDUM AND ORDER

August 30, 2005

Background

Freddie D. Widener (“Petitioner”), an inmate presently confined at the United

States Penitentiary, Lewisburg, Pennsylvania (“USP-Lewisburg”), filed this pro se

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The required filing

fee has been paid. Named as Respondent is USP-Lewisburg Warden Joseph Smith.

Petitioner states that on December 19, 1990, he was convicted of

conspiracy, robbery of a credit union, and assault with the use of a dangerous

weapon in connection with a robbery in the United States District Court for the

District of Maryland. Widener was subsequently sentenced to a 60 month term of

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incarceration on Count One, a 240 month term on Count Two and a concurrent 262

month term with respect to Count Three. Following a direct appeal, his conviction

was affirmed by the United States Court of Appeals for the Fourth Circuit. 

Widener states that he also unsuccessfully sought collateral relief via an

action filed pursuant to 28 U.S.C. § 2255. Specifically, he filed a § 2255 petition on

June 22, 1998 which asserted a violation of the Double Jeopardy Clause. His petition

was denied as being untimely. The dismissal was thereafter affirmed by the Fourth

Circuit.

Petitioner’s present action claims entitlement to federal habeas corpus relief

on the grounds that: (1) his trial counsel provided ineffective assistance; (2) his

conviction for both robbery of a credit union and one count of assault with the use of

a weapon in connection with a robbery is a violation of the prohibition against Double

Jeopardy; and (3) he was denied due process and his Sixth Amendment right to a jury

trial because his sentence was enhanced by non-jury determinations that a B.B. gun

was a dangerous weapon and that Petitioner had a supervisory role in the criminal

enterprise. 

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 In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior

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.” Apprendi, 530 U.S. at 490. 

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All of Petitioner’s claims are premised on the United States Supreme Court’s

decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000),1 Blakely v. Washington,

124 S. Ct. 2531 (2004), Ring v. Arizona, 536 U.S. 584 (2002), and its more recent

holding in United States v. Booker, 125 S. Ct. 738 (2005). In Blakely, the Supreme

Court stated that the Sixth Amendment did not permit a sentencing judge to increase

a sentence based on facts that were neither reflected in the jury’s verdict nor admitted

by the defendant. Booker reaffirmed Apprendi adding that the Federal Sentencing

Guidelines were not mandates but advisory only. 

In Ring, the Supreme Court relying on Apprendi, held that the Sixth

Amendment mandates that criminal defendants “are entitled to a jury determination of

any fact on which the legilature conditions an increase in their maximum punishment.” 

Ring, 536 U.S. at 607-09. Widener further maintains that his § 2255 remedy is

inadequate or ineffective.

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Discussion

Habeas corpus petitions brought under § 2241 are subject to summary

dismissal pursuant to Rule 4 ("Preliminary Consideration by the Judge") of the Rules

Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. §

2254 (1977) (applicable 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 face of the petition and any exhibits annexed to it that

the petitioner is not entitled to relief in the district court, the judge shall make an order

for its summary dismissal and cause the petitioner to be notified." 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 . . . ." Allen v. Perini, 424 F.2d 134, 141 (6th Cir.), cert. denied, 400 U.S. 906

(1970). Accord Love v. Butler, 952 F.2d 10, 15 (1st Cir. 1991). 

A federal criminal defendant's sentence is subject to collateral

attack in a proceeding before the sentencing court pursuant to 28 U.S.C. § 2255. 

E.g., United States v. Addonizio, 442 U.S. 178, 179 (1979). Section 2255 provides,

in part, that "[a]n application for a writ of habeas corpus in behalf of a prisoner who

is authorized to apply for relief by motion pursuant to this section, shall not be

entertained if it appears that the applicant has failed to apply for relief, by motion to

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the court which sentenced him, or that such court has denied him relief, unless it also

appears that the remedy by motion is inadequate or ineffective to test the legality of

his detention" (emphasis added). 28 U.S.C. § 2255; Davis v. United States, 417 U.S.

333, 343 (1974); Hill v. United States, 368 U.S. 424, 427 (1962); In re Dorsainvil, 119

F.3d 245, 249 (3rd Cir. 1997); In re Vial, 115 F.3d 1192, 1194 (4th Cir 1997);

Application of Galante, 437, F.2d 1164, 1165 (3rd Cir. 1971). In his instant action,

Widener is clearly challenging the legality of his federal criminal conviction and

sentence which occurred in the District of Maryland.

In ruling on the issue of inadequate or ineffective, the appellate courts have

instructed that a collateral relief motion is inadequate or ineffective only where it is

established that some limitation of scope or procedure would prevent the collateral

remedy from affording the prisoner a full hearing and adjudication of his claim of

wrongful detention. See Galante, 437 F.2d at 1165 (3d Cir. 1971)(quoting United

States ex rel. Leguillou v. Davis, 212 F. 2d 681, 684 (3d Cir. 1954)). It has also been

established that the burden is on the habeas petitioner to allege or demonstrate

inadequacy or ineffectiveness. See id.; Cagle v. Ciccone, 368 F.2d 183, 184 (8th Cir

1966). 

 Furthermore, prior unsuccessful collateral relief motions filed in the

sentencing court have been held to be insufficient in and of themselves to show that

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the motion remedy is inadequate and ineffective. Tripati v. Herman, 843 F.2d 1169,

1162 (9th Cir.), cert. denied, 488 U.S. 982 (1988); Litterio v. Parker, 369 F. 2d 395,

396 (3d Cir. 1966)(per curiam). “It is the inefficacy of the remedy, not a personal

inability to utilize it, that is determinative ....” Garris v. Lindsay, 794 F.2d 722, 727

(D.C. Cir.), cert. denied, 479 U.S. 993 (1986). The United States Court of Appeals

for the Third Circuit has held that, as to issues cognizable by the sentencing court

under § 2255, a § 2255 “supersedes habeas corpus and provides the exclusive

remedy.” Strollo v. Alldredge, 462 F.2d 1194, 1195 (3d Cir.)(per curiam), cert.

denied, 409 U.S. 1046 (1972).

Triestman v. United States, 124 F.3d 361 (2nd Cir. 1997), and Dorsainvil

also addressed what circumstances make a collateral relief remedy inadequate and

ineffective. The legislative limitations placed on collateral relief proceedings simply

do not render the remedy inadequate or ineffective so as to authorize pursuit of a

habeas corpus petition in this court. United States v. Brooks, 230 F.3d 643, 647 (3rd

Cir. 2000); Dorsainvil, 119 F.3d at 251. “To hold otherwise would simply effect a

transfer of forum for the adjudication of successive challenges to the validity of a

conviction.” Kennemore v. True, Civil No. 98-1175, slip op. at 6. (M.D. Pa. July 28,

1998)(Conaboy, J.).

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 Both the Triestman and Dorsainvil courts held that a § 2255 motion was

only “inadequate and ineffective” (thus allowing a petitioner to bring a § 2241

habeas corpus action) where the denial of a habeas action would raise serious

constitutional issues. Triestman, 124 F.3d at 377; Dorsainvil,119 F.3d at 249. The

serious constitutional issue was that a change in substantive law rendered the

conduct for which petitioner was convicted no longer criminal. Triestman, 124

F.3d at 366; Dorsainvil, 119 F.3d at 251. Thus, these cases set a high bar for what

a court will consider a serious constitutional issue sufficient to allow a petitioner to

bring a § 2241 petition to challenge a conviction or sentence.

Widener’s present claims do not fall within the narrow exception created

by Dorsainvil and Triestman. Specifically, there is no allegation by Petitioner that

his claims are based on any newly discovered evidence. Widener has also not

presented any facts to show that the denial of his habeas action would raise serious

constitutional issues.

Unlike Dorsainvil, Widener’s arguments for relief are not premised on any

intervening change in substantive law that would negate the criminal nature of his

conduct with respect to his federal conviction. Fundamental to Dorsainvil was the

fact that the petitioner may actually be innocent of the crime charged. In this case,

Petitioner has failed to present any allegations suggesting that he was not involved in

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2 While Tyler specifically addressed the detention of a state prisoner and

thus a claim presented under 28 U.S.C. § 2254, the holding applies equally to a federal

prisoner’s § 2255 claim. This is so because a § 2255 motion is the federal equivalent

of a state habeas petition filed pursuant to § 2254 and was intended to mirror § 2254 in

operative effect. United States v. Vancol, 916 F. Supp. 372, 377, n.3 (D. Del.)(citing

Reed v. Farley, 512 U.S. 339, 353 (1974)). Precedent under § 2254 and § 2255 may

be used interchangeably. 916 F. Supp. at 377 n.3 (citing Kaufman v. United States,

394 U.S. 217, 224-27 (1969)). 

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the alleged underlying criminal activity. Rather, his claims are solely based on

sentencing related issues, namely, that his sentence was improperly enhanced. 

Consequently, it is apparent that the claims for relief pending before this Court have

nothing to do with the actual question of Petitioner’s guilt. It is additionally

recognized that in Okereke v. United States, 307 F.3d 117, 120-121 (3d Cir. 2002),

the Third Circuit established that under Dorsainvil, § 2255 is not inadequate or

ineffective to raise Apprendi claims. In conclusion, Petitioner’s reliance on

Apprendi is misplaced.

Furthermore, Widener’s petition is also premised on the

Blakely/Ring/Booker decisions. In Tyler v. Cain, 533 U.S. 656, 663 (2001),2 the

Supreme Court established that a new rule of law is not made retroactive to cases on

collateral review unless the Court itself holds it to be retroactive. The Court of

Appeals for the Third Circuit recently held that the Blakely/Booker decisions do not

have retroactive effect. See Lloyd v. United States, 407 F. 3d 608, 615-16 (3d Cir. 

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2005); see also Oriakhi v. United States, Civ. No. 3:CV-04-36, slip op. at p. 3

(M.D. Pa. March 3, 2005)(Vanaskie, C.J.)(the Supreme Court has not directed that

Blakely can be retroactively applied to cases on collateral review). A similar finding

was made by the Supreme Court with respect to Ring claims. See Schiarro v.

Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 2526 (2004). Since Blakely Ring, and

Booker cannot presently be applied retroactively to cases on collateral review, this

Court is precluded from considering any such claim by Widener. See United States

v. Pinkston, 153 F. Supp. 2d 557 (M.D. Pa. 2001). 

Consequently, since Widener has not established that his remedy under §

2255 is inadequate or ineffective under the standards announced in Dorsainvil and

Triestman, his petition for writ of habeas corpus will be dismissed without

prejudice. Petitioner, if he so chooses, may reassert his present claims through an

application seeking leave to file a second or successive § 2255 motion. 

Consequently,

IT IS THEREFORE ORDERED THAT:

1. The petition for writ of habeas corpus is dismissed without

prejudice.

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2. The Clerk of Court is directed to close this case. 

3. There is no basis for the issuance of a Certificate of Appealability. 

 s/ James F. McClure, Jr. 

 JAMES F. McCLURE, JR. 

 United States District Judge 

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