UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

KENT GRIFFIN, :

:

Petitioner, : No. 4:CV-05-0891

:

vs. : Petition Filed 05/02/05

:

WARDEN RONALD R. HOLT, : (Judge Muir)

:

Respondent : (Magistrate Judge Smyser)

ORDER

September 13, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On May 2, 2005, Kent Griffin, an inmate at the Federal

Correctional Institution at Schuylkill in Minersville,

Pennsylvania, filed a petition for writ of habeas corpus pursuant

to 28 U.S.C. § 2241. Griffin is proceeding pro se and in forma

pauperis.

The Clerk of Court assigned this case to us but referred it

to Magistrate Judge J. Andrew Smyser for consideration. On July

28, 2005, the Magistrate Judge issued a report recommending that

Griffin’s petition be dismissed because the claim in it may be

raised only in a motion filed pursuant to 28 U.S.C. § 2255. 

On August 5, 2005, Griffin timely filed objections to the

Magistrate Judge’s Report and Recommendation. Respondent Warden

Ronald R. Holt filed his opposition brief on August 22, 2005. 

The time allowed for Griffin to file a reply brief expired on

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September 9, 2005, and to this date no such brief has been filed. 

Griffin’s objections to the Report and Recommendation are ripe

for disposition.

When objections are filed to a report of a Magistrate Judge,

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

or specified proposed findings or recommendations made by the

magistrate judge to which there are objections. United States v.

Raddatz, 447 U.S. 667 (1980); 28 U.S.C. §636(b)(1); M.D. Pa.

Local Rule 72.31. Furthermore, district judges have wide

discretion as to how they treat recommendations of the Magistrate

Judge. Id. In providing for a de novo review determination

rather than a de novo hearing, Congress intended to permit

whatever reliance a district judge, in the exercise of sound

discretion, chooses to place on a Magistrate Judge’s proposed

findings and recommendations. Id. See also Mathews v. Weber, 423

U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir.

1984).

Griffin was convicted in the United States District Court

for the Eastern District of Virginia in 2001 for being a

convicted felon in possession of a firearm in violation of 18

U.S.C. § 922(g)(1). He unsuccessfully appealed the conviction,

and his attempt to obtain post-conviction relief in a habeas

corpus petition filed pursuant to 28 U.S.C. § 2255 also failed. 

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Griffin now claims in the pending § 2241 petition that his

conviction was obtained in violation of his Fifth Amendment right

to due process, his Sixth Amendment right to a jury trial, and a

section of the International Covenant of Civil and Political

Rights. A review of the documents which Griffin has filed in

this case indicates that his sole substantive claim is that he is

entitled to relief because certain sentencing factors which had

not been submitted to the jury were used to enhance his sentence. 

In essence, Griffin seeks relief based strictly on the principles

discussed by the United States Supreme Court in Apprendi v. New

Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).

Magistrate Judge Smyser recommends that the petition be

dismissed without considering the substantive merits of the

claims because they may be considered only in a motion filed

pursuant to 28 U.S.C. § 2255. The Magistrate Judge’s ten-page

Report and Recommendation discusses in detail the case law

supporting that conclusion. 

The Court of Appeals for the Third Circuit has expressly

held that § 2255 is not inadequate or ineffective where the claim

to be raised is based on Apprendi. See Okereke v. United States

of America, 307 F.3d 117, 120-121 (3d Cir.2002); Dorsainvil, 119

F.3d 245 (3d Cir. 1997)(discussing the circumstances in which a

remedy pursuant to § 2255 would be “inadequate or ineffective”);

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Application of Galante, 437 F.2d 1164, 1165 (3d Cir. 1971). We

agree with the Magistrate Judge’s determination that Griffin’s

failure to demonstrate that the remedy created in 28 U.S.C. §

2255 is inadequate or ineffective to test the legality of his

detention precludes this court from considering the claims

asserted in his § 2241 petition. 

Griffin’s reference to the International Covenant of Civil

and Political Rights does not alter that conclusion. The portion

of that treaty relied upon by Griffin merely provides that 

anyone who is deprived of his liberty by ... detention shall

be entitled to take proceedings before a court, in order

that the court may decide without delay on the lawfulness of

his detention and order his release if the detention is not

lawful.

International Covenant of Civil and Political Rights, Art. 9, ¶4. 

It appears as though the requirements of that text were met when

Griffin filed his appeal and his § 2255 petition. To the extent

that Griffin contends that he is entitled to some further review

pursuant to that treaty, we agree with Magistrate Judge Smyser’s

observation that the treaty is not self-executing and therefore

may not be enforced in a court. See Reaves v, Warden, No. 3:01-

CV-1149, 2002 WL 535938 at *9 (M.D. Pa. Mar. 22, 2002)(Conaboy,

J.), aff’d, 2003 WL 193951 (3d Cir. Jan 28, 2003).

Griffin’s current inability to raise his claims in a § 2255

because of that statute’s procedural requirements does not render

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the remedy set forth in § 2255 inadequate or ineffective. See

Dorsainvil, 119 F.3d at 251. Consequently, Griffin’s claims are

not subject to review in a habeas petition filed pursuant to §

2241. 

We will dismiss Griffin’s petition.

NOW, THEREFORE, IT IS ORDERED THAT:

1. Griffin’s objections (Document 12) to Magistrate Judge

Smyser’s Report and Recommendation are overruled.

2. Magistrate Judge Smyser’s Report and Recommendation

(Document 11) filed on July 28, 2005, is adopted in

toto.

3. Griffin’s § 2241 petition (Document 1) is dismissed.

4. The Clerk of Court shall close this case.

5. Any appeal from this order will be deemed lacking in

probable cause and a certificate of appealability will

not issue.

s/Malcolm Muir 

MUIR, U. S. District Judge

MM:ga

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