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UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

DAVE GREEN, :

:

Petitioner :

:

v. : CIVIL NO. 4:CV-05-780

:

CRAIG APKER, : (Judge McClure) 

:

Respondent :

MEMORANDUM AND ORDER

 April 27, 2005 

Background

This pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241

was filed by Dave Green, an inmate presently confined at the Allenwood Low

Security Correctional Institution, White Deer, Pennsylvania (LSCI-Allenwood).

Petitioner has also submitted an application requesting leave to proceed in forma

pauperis. LSCI-Allenwood Warden Craig Apker is named as sole Respondent.

Green identifies himself as being a native and citizen of Jamaica. His petition

states that he “was admitted to the United States at Port Everglades, Florida on or

about October 25, 2002 as a nonimmigrant visitor for pleasure with authorization to

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 Green does admit that he was represented by a public defender and advised of

his Miranda warnings during his federal criminal prosecution.

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remain in the United States for a temporary period of time. Record document no.

1, p. 2. 

On March 17, 2003, Petitioner was apprehended in the State of New York

pursuant to an arrest warrant. He was subsequently extradited back to Florida and

placed in a federal correctional facility. Green subsequently entered a guilty plea to

a charge of conspiracy to import a Schedule II controlled substance in the United

States District Court for the Southern District of Florida. Petitioner was thereafter

sentenced to a seventy-eight (78) month term of imprisonment, which he is

presently serving at LSCI-Allenwood. Following his conviction, the Bureau of

Immigration and Customs Enforcement (BICE) lodged a detainer against Green for

purposes of a “Deportation Investigation.” Id. at p. 3.

Petitioner claims entitlement to federal habeas corpus relief on the grounds

that throughout the period of his arrest and criminal prosecution, he was never

advised of his right to consult with a diplomat/consular official from his native

country.1 Id. His petition argues that the failure of law enforcement officials to

apprise him of his right under 8 C.F.R. § 242 to seek assistance from consular

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authorities constituted an abuse of discretion and violated his due process and

equal protection rights as well as Article 36 of the Vienna Convention on Consular

Relations. Petitioner adds that the placement of the detainer precludes his

eligibility for various institutional programs and release to a halfway house.

Petitioner further contends that pursuant to the standards announced in INS v. St.

Cyr, 533 U.S. 289 (2001), the BICE’s detainer is likewise subject to dismissal

based on the violation of his right to request assistance from the Jamaican 

consulate. As relief, Green requests that his criminal conviction be vacated and that

he be granted immediate release.

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

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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).

Criminal Conviction

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 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). Green’s present action is

clearly challenging the legality of his federal guilty plea in the Southern District of

Florida. Therefore, a petition filed pursuant § 2255 is ordinarily the proper vehicle

for such a challenge.

During 1996, Congress imposed limitations on the availability of collateral

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In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act,

Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”). As part of AEDPA, 28 U.S.C. §§

2254 and 2255 were amended, limiting the availability of collateral review for all

motions brought under those sections.

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attack of convictions and sentences through amendments to § 2255.2 Originally

enacted in 1948 as the equivalent of the habeas writ, § 2255 requires that a federal

prisoner’s request for collateral review of a conviction or sentence must be brought

by motion in the district of the criminal trial court. The only exception, which we

will address below, allows a federal prisoner to bring a habeas petition if a § 2255

proves “inadequate or ineffective.” 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). 

The reason Congress initially enacted § 2255 was the difficulty of

administering habeas petitions under 28 U.S.C. § 2241. Previously, prisoners had

challenged their federal convictions by filing a petition under § 2241 in the district

where the prisoner was confined. As a result, the few districts in which federal

penal institutions were located had an inordinate number of habeas actions and did

not have access to the witnesses and records of the sentencing court. Dorsainvil,

119 F.3d at 249.

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The 1996 amendments retained the original provisions of § 2255 and added

both a one-year statute of limitations and restrictions on a prisoner’s ability to bring

a second or successive motion. The statute of limitations runs from the latest of: 

1) the date on which final judgment of conviction becomes final; 2) the date on

which impediment to making motion created by the government is lifted; 3) the date

on which the right asserted was initially recognized by the Supreme Court, if that

right has been newly recognized by the Supreme Court and made retroactively

applicable to cases on collateral review; or 4) the date on which the facts

supporting the claim could have been discovered. 

In addition, Congress required that a second or successive motion must be

certified by the appropriate court of appeals. Id. Known as the “gatekeeping

provisions,” certification restricts a prisoner’s ability to bring a second or

successive motion by requiring that the new motion contain either: 1) newly

discovered evidence that, if proven, would be sufficient to establish that movant

was not guilty; or 2) a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously unavailable. Id.

Prisoners may attempt to circumvent the statute of limitation and gatekeeping

provisions of § 2255 by bringing a claim for collateral review of conviction or

sentence under § 2241. As noted previously, a § 2241 petition is only available to

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attack the validity of a conviction or sentence in the very limited situation where a §

2255 is inadequate or ineffective.

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

instructed that a motion under § 2255 is inadequate or ineffective only where it is

established “that some limitation of scope or procedure would prevent a § 2255

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

of wrongful detention.” 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 § 2255 motions filed in the sentencing court

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

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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 § 2255 inadequate and ineffective. The

legislative limitations (either the statute of limitations or gatekeeping provisions

outlined supra at 4-5) placed on § 2255 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.).

 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

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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.

In a recent decision, this Court addressed a similar, at times identical § 2241

petition filed by a Jamaican inmate at LSCI-Allenwood. See Adams v. Apker,

Civil No. 4:CV-05-720, slip op. (April 18, 2005)(McClure, J.). In both Adams

and the present case, the request for § 2241 relief was not based on any newly

discovered evidence or any intervening change in substantive law that would negate

the criminal nature of his conduct with respect to his federal conviction. Likewise,

both Adams and Green acknowledge that their challenged federal convictions were

the result of guilty pleas. 

In Adams, this Court concluded that the petitioner did not establish that “his

remedy under § 2255 was inadequate or ineffective under the standards announced

in Dorsainvil and Triestman.” Id. at p. 9. The same analysis is applicable in the

present case. Accordingly, it is the conclusion of this Court that Green may not

challenge his federal criminal conviction from the Southern District of Florida in a §

2241 petition. Therefore, the filing of a § 2255 motion or an application to file a

second or successive § 2255 petition (submitted to the appropriate Circuit Court of

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 There is no indication in the petition as to whether Green previously sought

relief via a § 2255 action.

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 Under § 212(c), any permanent resident alien present in the United States for

seven (7) years or more could apply for a discretionary waiver of deportation. 

However, based on the Petitioner’s own admission he has only been in this country

since 2002.

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Appeals) are the only vehicles available to Petitioner.

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St. Cyr

Green’s petition also indicates that the imposition of his BICE detainer is

improper under St. Cyr. The Petitioner is apparently alleging that the detainer

should be lifted on the basis that it is the result of an unconstitutionally obtained

federal criminal conviction.

St. Cyr held that the Antiterroism and Effective Death Penalty Act (AEDPA)

and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)’s

elimination of § 212(c) discretionary relief could not be retroactively applied to preenactment guilty or nolo contendre pleas. Specifically, the Supreme Court stated

that “section 212(c)4 is available for aliens, like respondent [St. Cyr] whose

convictions, were obtained through plea agreements and who, notwithstanding

those convictions would have been eligible for § 212(c) relief at the time of their

plea under the law then in effect.” St. Cyr, 533 U.S. at 326. The decision relied

heavily on the fact that St. Cyr to his detriment entered a plea almost certainly

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based upon the likelihood that by doing so he would obtain a deportation waiver. 

See id.

Green acknowledges that his federal conviction via entry of a guilty plea took

place on August 14, 2003. It is that date which “determines which provision

determines the alien’s entitlement to apply for discretionary relief.” Chalas-Zapata

v. Ashcroft, 305 F. Supp.2d 333, 338 (S.D. N.Y. 2004). The IIRIRA took effect

in April, 1997, long before Green’s conviction. See id. Consequently, the

Petitioner’s post-enactment conviction does not entitle him to relief under St. Cyr.

As noted in Adams, St. Cyr was not challenging the legality of a federal criminal

sentence. Thus, unlike the instant Petitioner, St. Cyr did not have the availability of

a § 2255 remedy. 

The petition for writ of habeas corpus will be dismissed without prejudice. 

If appropriate, Green may reassert his present arguments in a § 2255 petition or in

an application to file a second or successive § 2255 petition before the appropriate

Circuit Court of Appeals. Consequently,

IT IS THEREFORE ORDERED THAT:

1. Petitioner is granted temporary leave to proceed in forma

pauperis for the sole purpose of filing this action.

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

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prejudice.

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

 4. 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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