1Petitioner also filed with this Court a Motion under § 2244 for Permission to File a

Second or Successive § 2255 Motion. (Doc. 2). However, such a motion must be filed in the

appropriate court of appeals. 28 U.S.C. § 2244 (b)(3)(A) & (B). 

2Rule 4 provides in relevant 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.”

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FREDERICK SUMMEY, : CIVIL ACTION NO. 4:CV-05-0676

:

Petitioner : (Judge McClure) 

:

v. : (Magistrate Judge Blewitt)

:

UNITED STATES OF AMERICA, :

:

Respondent :

 REPORT AND RECOMMENDATION

On April 4, 2005, Petitioner, Frederick Summey, an inmate at the United States Penitentiary

at Allenwood (“USP-Allenwood”) at White Deer, Pennsylvania, filed the instant Petition for Writ

of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1).1 Petitioner also paid the requisite filing

fee. (Doc. 4). We give preliminary consideration to the Petition pursuant to Rule 4 of the Rules

Governing Section 2254 Cases in the U.S. District Courts, 28 U.S.C. foll. § 2254 (1977) (applicable

to § 2241 petitions under Rule 1 (b)). See Patton v. Fenton, 491 F. Supp. 156, 158-59 (M.D. Pa.

1979).2 

Case 4:05-cv-00676-JFM Document 5 Filed 04/19/05 Page 1 of 15
3Petitioner’s factual background is contained in his habeas petition and in his § 2244

motion. (Docs. 1 & 2). 

2

I. Background.

The Petitioner was convicted on April 11, 1989, following a jury trial, in a United States

District Court for the District of New Jersey,3 of sexual assault, in violation of 18 U.S.C. § 2241(a).

(Doc. 2, p. 1). Petitioner was sentenced on the stated offense to life imprisonment. (Doc. 1, p. 2).

Petitioner states that he directly appealed his conviction to the sentencing District Court via § 2255

and to the Third Circuit Court of Appeals. Petitioner indicates that his appeals were denied in

March, 1990, August, 1991, and October, 1992. (Doc. 1, pp. 3, 5). 

Petitioner thus states that he filed a motion pursuant to 28 U.S.C. § 2255 challenging his

conviction and sentence with respect to his charge. The Petitioner, in his Habeas Petition, states

that the sentencing Court enhanced his sentence as a career offender under the U.S. Sentencing

Guidelines (“USSG”) using as a basis his prior convictions. Petitioner claims that the guideline for

a sexual offense carries a base level of 31 and a criminal history category of IV. Petitioner states that

the proper guideline sentence for his offense was 188-235 months. Petitioner now claims that the

Court improperly enhanced his sentence for his 2 prior felony crimes of violence and sentenced

him as a career offender under USSG § 4B1.1. The Petitioner claims that the Court raised his

offense level to 37 which carries a guideline sentence range of 360 months to life imprisonment.

(Doc. 2, p. 2). Petitioner states that the Court then used his criminal history to enhance his

sentence a total of 16 points. (Id. ,p. 3). 

Case 4:05-cv-00676-JFM Document 5 Filed 04/19/05 Page 2 of 15
4The Petitioner now claims that the six-level enhancement for a career offender which 

he received at his sentencing, was improper based on the recent United States Supreme Court

case of U.S. v. Booker, 125 S. Ct. 738 (2005), and also based on Blakely v. Washington 124 S.

Ct. 2531 (2004). (Doc. 2, pp. 3-4 & Doc. 1, p. 4). In Blakely v. Washington, the Court clarified

and constitutionally defined the term “statutory maximum” for purposes of Apprendi v. New

Jersey, 530 U.S. ___, 120 S.Ct. 2348 (2000). 

3

The Petitioner claims that the sentencing Court could not impose the career offender and

six-level Chapter 5 enhancement pursuant to the United States Sentencing Guidelines since this

violated his Sixth Amendment right in that the jury did not find him guilty of (and he did not admit

to) any of these factors for which his sentence was enhanced. (Id., p. 4). The Petitioner also

contends that the aggregate six-point enhancement was based on factors which a jury did not find

and to which he did not admit. The Petitioner states that “his prior convictions used to enhance

him to career offender by judge is unconstitutional in direct violation of his Sixth Amendment ans

(sic) so Petitioner should be re-sentenced.” (Id., p. 5). Petitioner also states that he “should be resentenced at his base level before it was enhanced and his criminal history before it was moved

from sixteen (16) to eighteen (18) points Criminal History Category VI, which would give him a

sentence between 188-235 months of imprisonment.” (Id.). 4

Petitioner states that: 

The Supreme Court in U.S. v. Booker, 543 U.S. __, ..., 125 S.Ct. 738 (2005) 

held sentencing under the Federal [Sentencing] Guidelines by 

judge-determined facts by preponderance violates the Sixth

Amendment right to trial by jury; ... . Furthermore, Booker ... means

that any fact that the judge relies on to establish a sentence 

range under the guidelines must be found by the jury or admitted by 

the Defendant .

(Doc. 2, pp. 3-4). 

Case 4:05-cv-00676-JFM Document 5 Filed 04/19/05 Page 3 of 15
4

The Petitioner also relies upon Blakely, supra. Petitioner states that the jury’s finding of facts

did not include the facts leading to the 6-level enhancement found by the trial court. Further,

Petitioner states that he did not admit to any of these factors used to enhance his sentence. 

Petitioner, in the Motion filed along with his Habeas Petition, states that “Booker now

constitute (sic) an intervening change in the law.” (Doc. 2, p. 4). 

Petitioner claims that his sentence of life imprisonment was the result of improper

enhancements by the District Court based upon guideline levels for a career offender adjustment,

a factor of which he was not found guilty by a jury beyond a reasonable doubt. Petitioner claims

that at sentencing, the District Court relied upon his prior convictions and enhanced his offense

level by a total of 6. The Petitioner contends that his sentence could not have been enhanced

based on the stated factor found by the Court at sentencing, since this factor was not proven

beyond a reasonable doubt. Petitioner claims that his sentence, which was the result of the

sentencing court adding the stated enhancement he was not charged with and convicted of,

exceeds the guideline range which the District Court could impose. Petitioner seeks to be resentenced at his base level before the sentencing court enhanced it so that his sentence will be 188-

235 months. 

 Petitioner requests this Court to re-sentence him without use of the former mandatory

guideline for criminal history 4 A1.1. Petitioner states that the U.S. Sentencing Guidelines were

ruled unconstitutional by the Supreme Court in Booker. (Id., pp. 4-5). Petitioner requests this

Court to modify his alleged illegally imposed sentence, in light of Booker. 

Case 4:05-cv-00676-JFM Document 5 Filed 04/19/05 Page 4 of 15
5This Court in U.S. v. Shade, No. 1:CR-02-144-02, M.D. Pa. August 18, 2004, held that

Blakely does not apply retroactively on collateral review. See also Garcia v. U.S., 2004 WL

1752588 (W.D.N.Y.); U.S. v. Stoltz, 2004 WL 1619131 (D. Minn.).

5

As stated, the Petitioner states that he directly appealed his 1989, judgment and sentence

to the United States Court of Appeals and indicates that his appeal was denied. Petitioner also

states that he filed a Motion to Vacate pursuant to 28 U.S.C. § 2255 in the United States District

Court which sentenced him. 

The Petitioner filed the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 

§ 2241 in the Middle District of Pennsylvania on April 4, 2005. Petitioner states that the decision

reached in Booker is an intervening change in the law which he could not raise in a § 2255, as such

§ 2255 is “inadequate” to raise the issue. (Doc. 2, p. 4). Thus, Petitioner seems to assert that the

legal basis of his claim under Booker was unavailable and he could not raise it previously. However,

the Supreme Court did not rule that Booker is retroactive.5 The Petitioner also mistakenly seeks

permission from this Court to file a second § 2255 motion. (Doc. 2). In any event, Petitioner seems

to contend that § 2255 is inadequate or ineffective as his claim is based on new rule or intervening

change in the law in light of Booker. (Doc. 2, p. 4). 

Petitioner maintains that the District Court unconstitutionally applied the sentencing

guidelines by using his prior convictions, as he was sentenced to a term of imprisonment exceeding

the offense of which he was convicted. Therefore, the Petitioner argues that his sentence on the

stated offense should be corrected to reflect a sentence within the applicable sentencing range

without the enhancement factor which raised his Offense Level by 6 points. (Doc. 2, p. 5).

Petitioner thus asserts that his maximum sentence of imprisonment was improperly increased based

Case 4:05-cv-00676-JFM Document 5 Filed 04/19/05 Page 5 of 15
6Recently, this Court stated in a similar habeas petition that “to the extent Petitioner

seeks to challenge his sentence under Apprendi, the proper vehicle would be to seek permission

to do so via a successive § 2255 petition with the sentencing court.” Harris v. Williamson, Civil

No. 3:04-1227, M.D. Pa., July 22, 2004, at p. 4 (J. Nealon). In the case of Taylor v. Williamson,

Civil No. 05-298, M.D. Pa., March 11, 2005, at p. 2 (J. Nealon), the Petitioner challenged his 2-

point enhancement for firearm possession, and this Court stated that his §2241 habeas petition

“is construed as nothing more than a successive § 2255 motion, which cannot be sustained

absent certification by the court of appeals.” As noted, in the present case, the Petitioner has 

stated that he filed a § 2255 motion with respect to his current sentence and he improperly

seeks permission from this Court, as opposed to the appeals court, to file a successive §2255

motion. (Doc. 2). In any event, Petitioner’s recourse is to seek permission from the Court of

Appeals to file a second § 2255 motion.

6

on a six level enhancement, which he states was unconstitutional. 

II. Discussion.

Petitioner filed the present Habeas Petition pursuant to 28 U.S.C. §2241, arguing that

Section 2255 is inadequate and ineffective based upon the case the recent Supreme Court case of

Booker. (Doc. 1 at pp. 4, 6). 

In his present Petition, Petitioner seeks to challenge his sentence as in excess of the guideline

range allowed for the crime of which he was found guilty. Petitioner states that the sentencing

enhancement found by the Court was not based on facts he was convicted of, and since he was not

found guilty, beyond a reasonable doubt, of being responsible for these factors, the District Court’s

finding that he was responsible for the stated factors was an improper basis to enhance his sentence

guideline range. This Court has considered similar claims in other cases and has consistently found

that § 2241 Petitions challenging sentencing enhancements should be dismissed for lack of

jurisdiction.6 

Case 4:05-cv-00676-JFM Document 5 Filed 04/19/05 Page 6 of 15
7

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.” A motion under

Section 2255 is “inadequate or ineffective” only where it is established “that some limitation of

scope or procedure would prevent a Section 2255 proceeding from affording the prisoner a full

hearing and adjudication of his claim of wrongful detention.” Application of Galante, 437 F.2d

1164, 1165 (3d Cir. 1971) (per curiam) (quoting United States ex rel. Leguillou v. Davis, 212 F.2d

681, 684 (3d Cir. 1954)). 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

fact that a prior Section 2255 motion filed in the sentencing court was denied is insufficient to show

that the Section 2255 remedy is inadequate or ineffective. Tripati v. Henman, 843 F.2d 1160, 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). 

Moreover, the United States Court of Appeals for the Third Circuit has held that as to issues

cognizable by the sentencing court under Section 2255, a motion under Section 2255 “supersedes

habeas corpus and provides the exclusive remedy.” Strollo v. Alldredge, 409 U.S. 1046 (1972). As

noted in Litterio, lack of success does not by itself entitle Petitioner to review of his habeas corpus

Case 4:05-cv-00676-JFM Document 5 Filed 04/19/05 Page 7 of 15
7Petitioner contends that the guideline offense level to which he should have been

subjected for his convicted offense, was unlawfully enhanced by the sentencing court, by

unconstitutionally applying the Sentencing Guidelines, when it raised his offense level by 6

points based on his prior criminal history. 

8

petition. The Third Circuit stated in Okereke v. U.S., 307 F. 3d 117, 120 (3d Cir. 2002), cert.

denied, 123 S.Ct. 572 (2002), that “[m]otions pursuant to 28 U.S.C. §2255 are the presumptive

means by which federal prisoners can challenge their convictions or sentences that are allegedly in

violation of the Constitution.” (Citation omitted). 

Clearly, the claim Petitioner presents in this Petition, challenging the length of his sentence

and seeking to vacate it,7 is within the purview of §2255. See Taylor, supra. Petitioner claims that

he was given an improper sentence based on an increased guideline level. 

In support of his efforts to have his Petition heard as a § 2241, the Petitioner seemingly

contends that he is not procedurally barred from filing his present Petition since §2255 is

“inadequate” because his claim is based on an intervening change in the law or a new rule in light

of Booker. Petitioner also states that the mentioned enhancements made by the sentencing court

were not subjected to the constraints of Booker. We find no merit to these arguments. Petitioner

clearly could, and has tried to, request the court of appeals to certify a successive § 2255 motion,

and he could raise his present claims in such a motion. 

In his Petition, Petitioner is challenging sentencing enhancements which were based on the

sentencing court’s findings which were not were not part of the charge to which he was found

guilty. Petitioner claims that, if he was sentenced in accordance with the maximum guideline range

allowed for his offense level, i.e., without the 6-point enhancement made by the sentencing court,

Case 4:05-cv-00676-JFM Document 5 Filed 04/19/05 Page 8 of 15
9

he would have been facing a shorter term of imprisonment, namely 188-235 months. Thus,

Petitioner maintains that his sentence exceeds the guideline range which would have been allowed

if he was sentenced in accordance with the proper penalties for his charged and convicted offense.

We find Petitioner’s claims to be unavailing in light of the law of this Circuit.

Petitioner is claiming that his sentence was unconstitutionally enhanced in light of the recent

Supreme Court case of Booker, arguing that his penalty was increased by the sentencing court’s

reliance on a factor, i.e. his prior criminal history, not found by the jury. We find that Petitioner’s

recourse is to seek permission from the appeals court to file a second motion under 28 U.S.C. 

§ 2255 with respect to his April, 1989, sentencing. Further, Petitioner contention that his sentence

of life exceeded the statutory maximum sentence to which he claims he should have been

subjected for the offense he ultimately was found guilty of should be raised in a §2255 motion.

Taylor, supra. 

With regard to the Petitioner’s sentencing argument, as discussed, we find that this is clearly

an issue that is to be raised in a § 2255 petition, of which he has already availed himself with

respect to his current sentence. The Petitioner must seek his relief via that vehicle even if he is

required to obtain permission from the appeals court to file a second § 2255 motion. Okereke,

supra.; Taylor, supra.

In this case, even though the Petitioner has already filed a §2255 motion regarding the

sentence for which he is presently incarcerated, he does not demonstrate a personal inability to

utilize this remedy. Despite the fact that he did file a previous §2255 motion as to his sentence,

he does not establish the inadequacy or ineffectiveness of the remedy itself. See Berry v. Lamer,

Case 4:05-cv-00676-JFM Document 5 Filed 04/19/05 Page 9 of 15
10

Civil No. 96-1678, slip op at 13-14 (M.D. Pa. April 30, 1997) (Kosik, J.) (finding that existence of

two orders from circuit court warning petitioner that no other submission shall be filed or

entertained in his case, did not render his remedy by way of Section 2255 motion inadequate or

ineffective); Holland v. Harding, Civil No. 95-0870, slip op at 4 (M.D. Pa. Nov. 21, 1995) (McClure,

J.) (holding that entering into a sentencing agreement wherein the right to challenge the conviction

or sentence by direct appeal or by Section 2255 motion is waived does not render a Section 2255

motion inadequate or ineffective); see also In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997)

(denying motion for certification to file a second Section 2255 petition without prejudice to

petitioner filing a Section 2241 habeas corpus petition because passage of a subsequent law may

negate the crime of which he was convicted, the Third Circuit Court of Appeals stated in dicta,

“[w]e do not suggest that § 2255 would be ‘inadequate or ineffective’ so as to enable a second

petitioner to invoke § 2241 merely because that petitioner is unable to meet the stringent

gatekeeping requirements of the amended § 2255. Such a holding would effectively eviscerate

Congress’s intent in amending § 2255.”).

We find that the present Habeas Petition should be dismissed for lack of jurisdiction. In the

case of Okereke, 307 F. 3d at 120, the Third Circuit held that the petitioner’s case did not fit within

the narrow exception of In re Dorsainvil on the basis that Apprendi was an intervening change in

the law that petitioner could not have predicted and used as the ground of a §2255 motion. The

Court further stated that, “[u]nlike the intervening change 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 conspiracy to import heroin, the crime for which Okereke was

Case 4:05-cv-00676-JFM Document 5 Filed 04/19/05 Page 10 of 15
8

In a recent unreported slip opinion, the Third Circuit cited to Okereke, 307 F.3d at 120-

121, and once again held that In re Dorsainvil did not extend to Apprendi claims. Ilodi v.

Gerlinski, C.A. No. 01-4421 (3d Cir. 2003) (Per Curiam).

9The Supreme Court in Blakely v. Washington, supra, invalidated a convict’s sentence

which, under the Washington State sentencing guidelines, was given an upward departure by

the sentencing court based on facts not established by the jury’s verdict and not proven beyond

a reasonable doubt. In Blakely, the state court sentenced the defendant to more than three

years above the 53-month standard guideline range for second degree kidnaping, to which the

defendant pled guilty, but below the ten-year maximum for class B felonies, based on the

court’s own finding (not admitted to by the defendant or found by a jury) that defendant acted

with deliberate cruelty.

11

convicted, not criminal. Accordingly, under our In re Dorsainvil decision, § 2255 was not

inadequate or ineffective for Okereke to raise his Apprendi argument.” Id. at 120-121.

 The Third Circuit again found that in a case similar to our Petitioner’s, the District Court

properly held that the petitioner could not file his petition under §2241. In the case of Reaves v.

Lewisburg, —F. 3d—, 2003 WL 193951 (3d Cir.(Pa.)), the petitioner claimed that §2255 was an

inadequate and ineffective means to raise an Apprendi claim. The court stated that the petitioner’s

argument was “foreclosed by our decision in Okereke..., where we held that under In re Dorsainvil,

§2255 is not inadequate or ineffective for individuals to raise Apprendi claims.” The court went on

to state that “Apprendi dealt with sentencing and did not render the drug law at issue non-criminal.

Okereke is dispositive of that issue here.” Thus, the court held that the petitioner was not entitled

to file his petition under §2241.8 Moreover, Apprendi also does not find any conduct of which our

Petitioner was convicted (sexual assault) to be no longer criminal. Further, Apprendi and Blakely9

deal with sentencing, as do our Petitioner’s claims. Clearly, the Third Circuit has held that § 2255

is not inadequate or ineffective to raise such claims.

Case 4:05-cv-00676-JFM Document 5 Filed 04/19/05 Page 11 of 15
10We note that in U.S. v. Brown, 2005 WL 78926 (E.D. Pa.) at *9, the District Court for

the Eastern District PA also found that Blakely does not apply retroactively to cases on collateral

review. 

12

As noted above, this Court has already held that Blakely does not apply retroactively to cases

on collateral review. Shade, supra. Our Petitioner’s judgment of conviction became final (October

29, 1992 (Doc. 1, p. 3)) well before Blakely was decided (June 24, 2004). This Court also very

recently noted in U.S. v. Brown, 2005 WL 318701 (M.D. Pa.), *5, n. 5., that the Supreme Court in

U.S. v. Booker, 125 S.Ct. 738, 769 (2005), “explicitly stated that its Booker decision applied to all

cases ‘pending on direct review or not yet final.’”(citation omitted). Our Petitioner‘s case is not

pending on direct review, and his Judgment and Conviction is final. 

In another recent case, U.S. v. Barnes, 2005 WL 217027 (E.D. Pa.), *2, the Court stated that

a motion for reduction of sentence under Booker was essentially a § 2255 motion. In the present

Habeas Petition, Petitioner is basically filing a Booker motion for reduction of his life sentence. He

asks this Court to reduce his sentence and to resentence him as required by Booker. (Doc. 2, pp.

4-5). As discussed, Petitioner’s recourse is to seek certification from the Court of Appeals to file a

successive § 2255 motion. As the Barnes Court held, Petitioner‘s motion for reduction of sentence

under Booker “is tantamount to a motion under 28 U.S.C. §2255." Id. Also, as in Barnes, our

Petitioner‘s Habeas Petition seeking a reduction of sentence under Booker, is really a § 2255

motion and therefore, his Habeas Petition should be dismissed.10 

Based upon the now well-settled case law in this Circuit, Petitioner’s Habeas Corpus Petition

should be dismissed for lack of jurisdiction without directing service of it on Respondent. 

Case 4:05-cv-00676-JFM Document 5 Filed 04/19/05 Page 12 of 15
13

III. Recommendation.

Based upon the foregoing, it is respectfully recommended that the Petition be dismissed.

s/ Thomas M. Blewitt 

THOMAS M. BLEWITT

United States Magistrate Judge

Dated: April 19, 2005 

Case 4:05-cv-00676-JFM Document 5 Filed 04/19/05 Page 13 of 15
14

 IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FREDERICK SUMMEY, : CIVIL ACTION NO. 4:CV-05-0676

:

Petitioner : (Judge McClure) 

:

v. : (Magistrate Judge Blewitt)

:

UNITED STATES OF AMERICA, :

:

Respondent :

 NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing

Report and Recommendation dated April 19, 2005. 

Any party may obtain a review of the Report and Recommendation pursuant to 

Rule 72.3, which provides:

Any party may object to a magistrate judge’s proposed findings, 

recommendations or report addressing a motion or matter described in 

28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the 

disposition of a prisoner case or a habeas corpus petition within ten (10)

days after being served with a copy thereof. Such party shall file

with the clerk of court, and serve on the magistrate judge and all

parties, written objections which shall specifically identify the

portions of the proposed findings, recommendations or report to which

objection is made and the basis for such objections. The briefing

requirements set forth in Local Rule 72.2 shall apply. A judge shall

make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection

is made and may accept, reject, or modify, in whole or in part, the findings

or recommendations made by the magistrate judge. The judge, however,

need conduct a new hearing only in his or her discretion or where 

required by law, and may consider the record developed before the

Case 4:05-cv-00676-JFM Document 5 Filed 04/19/05 Page 14 of 15
15

magistrate judge, making his or her own determination on the basis

of that record. The judge may also receive further evidence, recall

witnesses or recommit the matter to the magistrate judge with

instructions.

s/ Thomas M. Blewitt

THOMAS M. BLEWITT 

United States Magistrate Judge 

Dated: April 19, 2005 

Case 4:05-cv-00676-JFM Document 5 Filed 04/19/05 Page 15 of 15