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UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

DR. JOSEPH A. GORKO, JR., :

:

Petitioner :

:

v. : CIVIL NO. 4:CV-05-956

:

RONNIE HOLT, ET AL, : (Judge McClure) 

:

Respondents :

MEMORANDUM AND ORDER

May 13, 2005

Background

Joseph A. Gorko, Jr., an inmate presently confined at the Schuylkill Federal

Correctional Institution, Minersville, Pennsylvania (FCI-Schuylkill), initiated this pro se

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

also submitted a request for leave to proceed in forma pauperis. For the reasons set

forth below, Gorko will be granted leave to proceed in forma pauperis, however his

petition will be dismissed without prejudice.

Named as Respondents are Warden Ronnie Holt of FCI-Schuylkill and the

United States of America. Gorko correctly states that on April 4, 2002, he was

convicted of multiple counts following a jury trial before Chief Judge Vanaskie of this

Court. See United States v. Gorko, 3:CR-00-259. Petitioner was subsequently

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1. 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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sentenced to a 97 month term of incarceration. He acknowledges that a direct appeal

of his conviction is presently pending before the United States Court of Appeals for

the Third Circuit. See Record document no. 2, ¶ 9.

Gorko generally asserts that he was “grossly over sentenced” and “has

already served his maximum possible actual sentence.” Id. at ¶ 12(A). He contends

that his conviction was the result of perjured testimony, trial court bias, and a political

and personal cover-up. See Record document no. 2, pgs 1-4. The primary focus of

the petition is Gorko’s claim that his sentence was enhanced based on factors which

were not adjudicated by the jury. 

In support of that argument, the petition references 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), and its more recent holding in United States v.

Booker, 125 S. Ct. 738 (2005). In Blakely, the 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. As relief, Gorko seeks his immediate release pending his full

exoneration via direct appeal.

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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). The Allen court also stated that "the District Court

has a duty to screen out a habeas corpus petition which should be dismissed for lack

of merit on its face." 424 F.2d at 141.

As previously noted, Petitioner asserts that he is presently pursuing a direct

appeal of his federal conviction and sentence. A review of the docket from

Petitioner’s criminal proceeding confirms that Gorko’s direct appeal is presently under

consideration by the United States Court of Appeals for the Third Circuit. A federal

criminal defendant's sentence is also subject to collateral attack in a proceeding before

the sentencing court pursuant to 28 U.S.C. § 2255. E.g., United States v. Addonizio,

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2. 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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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). 

During 1996, Congress imposed limitations on the availability of collateral

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

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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.

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. 

Prisoners may attempt to circumvent the statute of limitations 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 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

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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). 

“The Court of Appeals for the Third Circuit has held that, as to issues

cognizable by the sentencing court under § 2255, § 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). Dorsainvil and Triestman v.

United States, 124 F.3d 361 (2nd Cir. 1997), 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 F.3d at 366;

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3. In Tyler v. Cain, 533 U.S. 656, 663 (2001), 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.

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

serious constitutional issue are sufficient for courts to allow a petitioner to bring a §

2241 petition to challenge a conviction or sentence. It is undisputed that

Petitioner has a direct appeal pending before the Court of Appeals for the Third

Circuit. Moreover, Gorko states that his present habeas petition was

“[s]imultaneously Also Filed In The U.S. 3rd Circuit Court Of Appeals.” Record

document no. 1, p. 1. There is also no indication whatsoever that the Petitioner has

previously initiated a § 2255 action before the trial court. Consequently, in light of

his pending direct appeal and available § 2255 option, there is no basis for a

determination that Petitioner’s § 2255 remedy is inadequate or unavailable.

As previously noted, Gorko’s petition is primarily premised on the

Apprendi/Blakely/Booker decisions. The Supreme Court has not made a

determination that Blakely can be applied retroactively to cases on collateral review. 

See Cuevas v. Derosa, 2004 WL 2367356 (1st Cir. Oct. 22, 2004).3 Since Blakely

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

precluded from considering any such claim by Gorko. See United States v.

Pinkston, 153 F. Supp. 2d 557 (M.D. Pa. 2001). There has also been no directive

that Booker or Apprendi may be applied retroactively.

Based on the foregoing analysis, the petition for writ of habeas corpus will

be dismissed without prejudice. Gorko, if he so chooses, may reassert his present

Apprendi/Blakely/Booker claims through his pending direct appeal or via a properly

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filed § 2255 petition. Consequently,

IT IS THEREFORE ORDERED THAT:

1. Petitioner is granted leave to proceed in forma pauperis.

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

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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