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UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

BUCKLEY OTTO, :

Petitioner :

:

v. : CIVIL NO. 4:CV-05-948

:

: (Judge McClure) 

TROY WILLIAMSON, WARDEN, :

Respondent :

:

MEMORANDUM AND ORDER

May 16, 2005

Background

Buckley Otto, an inmate presently confined at the Allenwood Federal

Correctional Institution, White Deer, Pennsylvania (FCI-Allenwood), filed this pro se

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Accompanying the

petition is an in forma pauperis application. Named as Respondent is FCI-Allenwood

Warden Troy Williamson.

Petitioner states that he was convicted of four (4) counts of bank robbery

following a jury trial in the United States District Court for the District of Maine. On

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1 Otto states that he was convicted in the District of Maine. However, his

petition adds that his conviction occurred in Hartford, Connecticut. Based on a

review of another pending habeas corpus action filed by Otto with this Court, it is

apparent he was convicted of bank robbery, armed bank robbery, kidnaping during

bank robbery, and conspiracy on June 30, 1983 in the United States District Court for

the District of Connecticut. See Otto v. Warden, FCI-Allenwood, Civil No. 4:CV-04-

1774.

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June 30, 1983, Otto was sentenced to a twenty (20) year term of incarceration.1

Petitioner acknowledges that he did not pursue a direct appeal. Otto states that he did

unsuccessfully seek collateral relief in three (3) actions filed pursuant to 28 U.S.C. §

2255. Specifically, two of his § 2255 petitions were denied in 1985 while the third

petition was dismissed on August 18, 1989. 

Otto’s present petition claims entitlement to federal habeas corpus relief on

the grounds that: (1) the trial court improperly instructed the jury; (2) the evidence

presented at trial failed to establish that Petitioner committed a crime. Petitioner

indicates that both of his present claims were previously asserted in an application

requesting leave to file a second or successive § 2255 petition but were not reviewed

on their merits. See Record document no. 1, ¶ ¶ 14-15. He further maintains that his

§ 2255 remedy is inadequate or ineffective.

Discussion

Habeas corpus petitions brought under § 2241 are subject to summary

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

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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

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.

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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,

Otto is clearly challenging the legality of his federal criminal conviction and sentence

which occurred in the District of Connecticut.

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

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

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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.).

 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

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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.

Petitioner admits that he previously asserted his present claims in a

presumably unsuccessful application for leave to file a second or successive § 2255

action. Otto also acknowledges that he filed three (3) prior unsuccessful § 2255

petitions during the 1980's. The Petitioner presently argues that because he was

denied his right to trial by jury, he should be allowed to pursue this § 2241 action. 

Otto’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. Likewise, there is no

contention that they are being raised pursuant to any new intervening substantive rule

of criminal law which can apply retroactively to cases on collateral review.

Unlike Dorsainvil, Petitioner’s claims are also not premised on any

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

conduct with respect to his federal conviction. Otto has also not presented any

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

issues.

Consequently, since Otto has already asserted his claims in a prior

unsuccessful application to file a second or successive § 2255 petition and has not

otherwise 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 again

reassert his present claims through an application seeking leave to file a second or

successive § 2255 motion. An appropriate Order will enter.

IT IS THEREFORE ORDERED THAT:

1. Petitioner’s request to proceed in forma pauperis is granted for the

sole purpose of the filing of this action.

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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