UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

DONNIQUE HESTER, :

:

Petitioner : No. 4:CV-10-1127

:

vs. : (Petition Filed 5/25/10) 

:

B.A. BLEDSOE, Warden, : (Judge Muir)

:

Respondent :

MEMORANDUM AND ORDER

May 27, 2010

Donnique Hester, an inmate presently confined in the

United States Penitentiary, Lewisburg, Pennsylvania, filed the

above captioned petition for writ of habeas corpus pursuant to

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

conviction from the United States District Court for the

District of Colorado. Along with the filing of his petition,

Castillo filed an application to proceed in forma pauperis. 

(Doc. 2). Named as respondent is B.A. Bledsoe, USP-Lewisburg

Warden.

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

Case 4:10-cv-01127-MM-DB Document 3 Filed 05/27/10 Page 1 of 7
1 thereof. For the reasons set forth below, the petition will

be dismissed summarily.

Background

On February 28, 2006, following the entry of a guilty

plea in the United States District Court for the District of

Colorado to one count of Possession of a Firearm by a Prohibited

Person, a violation of 18 U.S.C. § 922(g)(1), Hester was

sentenced to a 110 month term of incarceration. See United

States v. Hester, Crim. Action No. 1:05-cr-00330-LTB-1 (D.

Colorado 2006). 

Hester did not file a direct appeal, nor did he 

challenge his conviction in any other post-conviction

proceeding. See Id. 

Petitioner now turns to this Court seeking relief

pursuant to § 2241. In his instant petition, Hester states the

following ground for relief:

A conviction pursuant to an unconstitutional law

may not be ignored, furthermore an

unconstitutional law is “void” and no law. An

offense created by it is not a crime. A

conviction under it is not merely erroneous but is

illegal and void. The statute here, 18 U.S.C. §

922(G)(1) insofar as the second amendment to the

United States Constitution authorizes this

petitioner the right to bear arms. Therefore, the

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Case 4:10-cv-01127-MM-DB Document 3 Filed 05/27/10 Page 2 of 7
conviction and sentence for alleged unauthorized

possession of a firearm, 18 U.S.C. § 922(G)(1) is

not only “void” but also “tainted” and must be

vacated. 

(Doc. 1, petition). 

Discussion

A federal criminal defendant's conviction/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, Hester is clearly maintaining that his federal conviction

violated 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

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

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Case 4:10-cv-01127-MM-DB Document 3 Filed 05/27/10 Page 3 of 7
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). 

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.

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Case 4:10-cv-01127-MM-DB Document 3 Filed 05/27/10 Page 4 of 7
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 has also been held that the fact that a petitioner's

§2255 motion may be barred by the one year statute of

limitations applicable to such actions does not render that

remedy inadequate or ineffective. See United States v. Lurie,

207 F.3d 1075, 1077-78 (8th Cir. 2000); Charles v. Chandler, 180

F.3d 753, 758 (6th Cir. 1999); Higgs v. Hobbs, No. CA 99-1113-

RV-C, 2000 WL 284277, at *3 (S.D. Ala. Feb. 29, 2000); Ambrosio

v. United States, No. 99CIV. 9626(DC), 94 CIV. 674(DC), 2000 WL

109009, at * 2 (S.D.N.Y. Jan. 28, 2000). 

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Case 4:10-cv-01127-MM-DB Document 3 Filed 05/27/10 Page 5 of 7
Petitioner fails to provide an explanation as to why he

did not seek a §2255 motion with the sentencing court. 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)). Hester has not met

this burden.

Additionally, Hester does not meet the narrow Dorsainvil

exception entitling him to § 2241 relief as he has not

demonstrated an intervening change in the law which would affect

the probability of his innocence.1 Thus, the petition for a writ

of habeas corpus under 28 U.S.C. § 2241 will be dismissed. An

appropriate Order accompanies this Memorandum Opinion.

s/Malcolm Muir 

MUIR

United States District Judge

2. In Dorsainvil, the court held that a federal

prisoner barred from using a § 2255 motion under the AEDPA

standards for successive motions could resort to a § 2241

petition if the prisoner "had no earlier opportunity to

challenge his conviction for a crime that an intervening

change in substantive law may negate . . . ." 119 F.3d at

251. The court stressed that the holding was a "narrow

one" based on the unusual circumstances presented there.

Id. at 251-52.

Case 4:10-cv-01127-MM-DB Document 3 Filed 05/27/10 Page 6 of 7
UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

DONNIQUE HESTER, :

:

Petitioner : No. 4:CV-10-1127

:

vs. : (Petition Filed 5/25/10) 

:

B.A. BLEDSOE, Warden, : (Judge Muir)

:

Respondent :

ORDER

May 27, 2010

For the reasons set forth in the accompanying Memorandum,

IT IS HEREBY ORDERED THAT:

1. Petitioner’s motion to proceed in forma

pauperis (Doc. 2) is GRANTED for the

sole purpose of filing the petition. 

2. The petition for a writ of habeas corpus

is DISMISSED, without prejudice to any

right Hester may have to file a § 2255

motion in the United States District

Court for the District of Colorado. 

3. The Clerk of Court shall CLOSE this

case.

s/Malcolm Muir 

MUIR

United States District Judge

Case 4:10-cv-01127-MM-DB Document 3 Filed 05/27/10 Page 7 of 7