UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

ANDRE PAIGE, :

:

Petitioner : No. 4:CV-10-0701

:

vs. : (Petition Filed 04/01/10) 

:

RONNIE HOLT, Warden, : (Judge Muir)

:

Respondent :

MEMORANDUM AND ORDER

April 12, 2010

Andre Paige, an inmate presently confined in the Canaan

United States Penitentiary, Waymart, Pennsylvania, filed the

above captioned petition for writ of habeas corpus pursuant to

28 U.S.C. § 2241. Paige challenges the validity of his

conviction and sentence from the United States District Court

for the Middle District of Florida. Along with the filing of

his petition, Paige filed an application to proceed in forma

pauperis. (Doc. 3). 

The petition will now be given preliminary consideration

pursuant to Rule 4 of the Rules Governing § 2254 Cases, 28

U.S.C. foll. § 2254, as made applicable to § 2241 cases by Rule

1 thereof. For the reasons set forth below, the petition will

be dismissed summarily.

Case 4:10-cv-00701-MM-DB Document 4 Filed 04/12/10 Page 1 of 8
Background

In September 2004, a federal grand jury in Tampa,

Florida, returned a third superseding indictment charging Andre

T. Paige with the following offenses: 

Count One - violent crime in aid of racketeering

activity, in violation of 18 U.S.C. §§ 1959(a)(1)

and 2; 

Count Two - aiding and abetting another who

murdered a person with the intent of preventing

that person from communicating to a law

enforcement officer or judge of the United States

information relating to federal offenses, in

violation of 18 U.S.C. §§ 1512(a)(1)(C),

1512(a)(3)(A) and 2; 

Count Three - aiding and abetting another who

carried a firearm during and in relation to a

federal crime of violence and in the course

thereof used the firearm to cause a person's death

by murder, in violation of 18 U.S.C. §§ 924(c)(1),

924(j)(1), and 2; 

Count Four - conspiracy to affect interstate

commerce by robbery, in violation of 18 U.S.C. §§

1951 and 2; 

Counts Five, Seven, and Nine - aiding and abetting

another to affect interstate commerce by robbery,

in violation of 18 U.S.C. §§ 1951 and 2; 

Counts Six and Ten - aiding and abetting another

who carried a firearm that was discharged during

the commission of a crime of violence, in

violation of 18 U.S.C. §§ 924(c)(1)(A),

924(c)(1)(A)(iii) and 2; and, 

Count Eight - aiding and abetting another who

carried a firearm that was brandished during the

commission of a crime of violence, in violation of

18 U.S.C. §§ 924(c)(1)(A), 924(c)(1)(A)(ii) and 2.

D-130.

2

Case 4:10-cv-00701-MM-DB Document 4 Filed 04/12/10 Page 2 of 8
See United States v. Paige Crim. Action No.

8:02-cr-00508-EAK-MSS-1(M.D. Florida, Tampa Division 2002). 

Following a ten-day trial, the jury found Paige guilty on

all counts of the third superseding indictment. Id.

On January 27, 2006, Paige was sentenced to life

imprisonment as to Counts One, Two, and Three, and to 240

months' incarceration on each of Counts Four, Five, Seven and

Nine, all to run concurrently, and, to 120 months' incarceration

on Count Six and 300 month's incarceration on Counts Eight and

Ten, all to run consecutively to the sentences imposed on all

other counts, for a total effective term of life imprisonment

plus 720 months' incarceration. Id. The District Court also

sentenced Paige to sixty months' supervised release on Counts

One, Two, Three, Six, Eight, and Ten, and to thirty-six months'

supervised release on Counts Four, Five, Seven, and Nine, all

such terms to run concurrently. Id. In addition, the Court

ordered Paige to pay $8007 in restitution. Id. 

On January 30, 2006, Paige filed a direct appeal of his

conviction and sentence. Id. 

On July 18, 2007, the United States Court of Appeals for

the Eleventh Circuit upheld Paige’s conviction and sentence. 

Id. 

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Case 4:10-cv-00701-MM-DB Document 4 Filed 04/12/10 Page 3 of 8
On September 29, 2008, petitioner filed a motion to

vacate pursuant to 28 U.S.C. § 2255. Id. 

On March 16, 2009, Paige’s 2255 motion was denied. Id. 

On April 1, 2010, Paige filed the instant petition for

writ of habeas corpus, challenging his conviction pursuant to 28

U.S.C. § 2241. (Doc. 1). In his instant petition, Paige asserts

six separate grounds for relief. Id. 

Discussion

A federal criminal defendant's conviction and sentence

are 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). In the instant

case, Paige clearly maintains that his federal conviction and

sentence violate his constitutional rights.

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

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Case 4:10-cv-00701-MM-DB Document 4 Filed 04/12/10 Page 4 of 8
or ineffective to test the legality of his detention" (emphasis

added). 

A motion under § 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)). It has

been recognized 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 are insufficient in and of themselves to show

that the motion 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.) (emphasis

added), cert. denied, 479 U.S. 993 (1986). 

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Case 4:10-cv-00701-MM-DB Document 4 Filed 04/12/10 Page 5 of 8
The United States Court of Appeals for the Third Circuit

has held that as to issues cognizable by the sentencing court

under § 2255, a motion under § 2255 "supersedes habeas corpus

and provides the exclusive remedy." Strollo v. Alldredge, 463

F.2d 1194, 1195 (3d Cir.) (per curiam), cert. denied, 409 U.S.

1046 (1972). Moreover, the legislative limitations 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. In Re Dorsainvil, 119 F.3d 245, 251 (3d

Cir. 1997).

To seek federal post-conviction relief from a judgment of

conviction, persons convicted in federal court are required to

bring their collateral attacks challenging the validity of their

conviction and sentence by filing a motion to vacate sentence

pursuant to 28 U.S.C. §2255, not under 28 U.S.C. § 2241. Id. at

249. If a prisoner attempts to challenge his conviction or

sentence under 28 U.S.C. §2241, the habeas petition must be

dismissed for lack of jurisdiction. Galante, 437 F.2d at 1165. 

It is the petitioner's burden to prove that §2255 would

be an inadequate or ineffective remedy. Reyes-Requena v. United

States, 243 F. 3d 893, 901 (5th Cir. 2001) (citing Pack v.

Yusuff, 218 F.3d 448, 452 (5th Cir. 2000)). Paige has not met

6

Case 4:10-cv-00701-MM-DB Document 4 Filed 04/12/10 Page 6 of 8
this burden. Moreover, Paige does not state that he has

requested permission from the United States Court of Appeals for

the Eleventh Circuit for leave to file a successive petition. 

There remains that possibility that Paige would be granted

permission by the Eleventh Circuit to file a successive § 2255

motion, if appropriate. Thus, the court will dismiss Paige’s

petition for a writ of habeas corpus under 28 U.S.C. § 2241,

without prejudice to any right petitioner may have to seek leave

to file a second or successive § 2255 motion. 

An appropriate Order accompanies this Memorandum Opinion.

s/Malcolm Muir 

MUIR

United States District Judge

Case 4:10-cv-00701-MM-DB Document 4 Filed 04/12/10 Page 7 of 8
UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

ANDRE PAIGE, :

:

Petitioner : No. 4:CV-10-0701

:

vs. : (Petition Filed 04/01/10) 

:

RONNIE HOLT, Warden, : (Judge Muir)

:

Respondent :

ORDER

April 12, 2010

For the reasons set forth in the accompanying Memorandum,

IT IS HEREBY ORDERED THAT:

1. Petitioner's application to proceed in

forma pauperis (Doc. 3) is GRANTED only

for the purpose of filing the petition

for writ of habeas corpus. 

2. The petition for a writ of habeas corpus

(Doc. 1, petition) is DISMISSED for lack

of jurisdiction. 

3. The Clerk of Court shall CLOSE this

case.

s/Malcolm Muir 

MUIR

United States District Judge

Case 4:10-cv-00701-MM-DB Document 4 Filed 04/12/10 Page 8 of 8