IN THE UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

WILBERT BENOIT, :

:

Petitioner :

:

v. : CIVIL NO. 4:CV-15-1762

:

WARDEN DAVID EBBERT, : (Judge Brann)

:

Respondent :

MEMORANDUM

October 16, 2015

Background

Wilbert Benoit, an inmate presently confined at the United States

Penitentiary, Lewisburg, Pennsylvania (USP-Lewisburg) filed this pro se habeas

corpus petition pursuant to 28 U.S.C. § 2241. Named as sole Respondent is

Warden David Ebbert of USP-Lewisburg. The required filing fee has been paid.

Petitioner states that he entered a guilty plea in the United States District

Court for the Southern District of Florida on January 29, 2010. According to

Benoit, his conviction and sentence were affirmed on direct appeal by the United

States Court of Appeals for the Eleventh Circuit on August 16, 2010.

Petitioner also indicates that he previously sought relief with the sentencing

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court via a petition pursuant to 28 U.S.C. § 2255.

Petitioner’s pending action seeks habeas corpus relief on the basis his

underlying criminal indictment was insufficient. See Doc. 1, p. 10. He explains

that the allegations in Count One of the indictment did not state a federal offense. 

The Petition generally indicates that Count One of the underlying indictment

charged Benoit with a “commercial” crime but there was no corresponding

regulation published in the Federal Register. Id. Due to the absence of a

published regulation, Benoit concludes that his guilty plea is invalid because

Count One “did not state a federal offense.” Id. at p. 11.

Discussion 

Habeas corpus petitions are subject to summary dismissal pursuant to Rule

4 (“Preliminary Review”) of the Rules Governing Section 2254 Cases in the

United States District Courts, 28 U.S.C. foll. § 2254 (2004). See, e.g., Mutope v.

Pennsylvania Board of Probation and Parole, 2007 WL 846559 *2 (M.D. Pa.

March 19, 2007)(Kosik, J.). The provisions of Rule 4 are 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 petition and

any attached exhibits that the petitioner is not entitled to relief in the district court,

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the judge must dismiss the petition and direct the clerk to notify the petitioner.” 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. . . .” Gorko v. Holt, 2005 WL 1138479 *1

(M.D. Pa. May 13, 2005)(McClure, J.)(quoting Allen v. Perini, 424 F.2d 134, 141

(6th Cir. 1970).

Since he initiated his action before this Court, Petitioner is apparently

arguing that he may bring his present claims of unconstitutional conviction and

sentence via a § 2241 petition. It would appear that it is Benoit’s contention that

this Court has jurisdiction over his § 2241 action by virtue of his ongoing 

detention at USP-Lewisburg. 

When challenging the validity of a federal sentence and not its execution,1

 a

federal prisoner is generally limited to seeking relief by way of a motion pursuant

to 28 U.S.C. § 2255. In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997); Russell

v. Martinez, 325 Fed. Appx. 45, 47 (3d Cir. 2009)(“a section 2255 motion filed in

the sentencing court is the presumptive means for a federal prisoner to challenge

the validity of a conviction or sentence”). A challenge can only be brought under

1 A federal prisoner may challenge the execution of his sentence by initiating

an action pursuant to § 2241. See Woodall v. Federal Bureau of Prisons, 432 F.3d

235, 241 (3d Cir. 2005). 

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§ 2241 if “it . . . appears that the remedy by [a § 2255] motion is inadequate or

ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). This

language in § 2255, known as the safety-valve clause, must be strictly construed. 

Dorsainvil, 119 F.3d at 251; Russell, 325 Fed. Appx. at 47 (the safety valve “is

extremely narrow and has been held to apply in unusual situations, such as those in

which a prisoner has had no prior opportunity to challenge his conviction for a

crime later deemed to be non-criminal by an intervening change in the law”).

 “It is the inefficacy of the remedy, not the personal inability to use it, that is

determinative.” Cradle v. United States, 290 F.3d 536, 538 (3d Cir. 2002). 

“Section 2255 is not inadequate or ineffective merely because the sentencing court

does not grant relief, the one-year statute of limitations has expired, or the

petitioner is unable to meet the stringent gatekeeping requirements of the amended

§ 2255.” Id. at 539. See also, Alexander v. Williamson, 324 Fed. Appx. 149, 151

(3d Cir. 2009).

Petitioner is clearly challenging the validity of his guilty plea and sentence

which were entered in the Southern District of Florida. Thus, he must do so by

following the requirements of § 2255. As previously noted, Petitioner states that

he filed a direct appeal and a § 2255 action. Moreover, there is no indication by

Petitioner that he previously sought relief seek authorization from the appropriate

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Court of Appeals to file a second or successive § 2255 petition for the purpose of

pursuing his present claim.

Benoit’s instant claim is not based upon a contention that his conduct is no

longer criminal as a result of some change in the law. Nor has Petitioner shown

that he is unable to present his claims via a § 2255 proceeding. As recognized by

the Honorable Kim R. Gibson in Pollard v. Yost, No. 07-235, 2008 WL 4933599,

at *6 (W.D. Pa. Nov. 18, 2008), for a challenge to a federal conviction to be

presented by a federal inmate by way of a § 2241 petition, there must not only be

“a claim of actual innocence but a claim of actual innocence coupled with the

inability to have brought the claim before because of a change in the construction

of the criminal statute by a court having the last word on the proper construction

of the statute, which change rendered what had been thought to be criminal within

the ambit of the statute, no longer criminal.” 

Clearly, Benoit’s pending claim does not fall within the narrow Dorsainvil

exception to the general rule that section 2255 provides the exclusive avenue by

which a federal prisoner may mount a collateral challenge to his conviction or

sentence. See Levan v. Sneizek, 325 Fed. Appx. 55, 57 (3d Cir. April 2009). As

previously noted, Petitioner has not properly sought authorization from the

appropriate Court of Appeals to file a second or successive § 2255 petition for the

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purpose of pursuing his present Burrage claim. See Dixon v. Warden, FCISchuylkill, 2015 WL 871828 *3 (M.D. Pa. Feb. 27, 2015)(before the federal court

door to the filing of a § 2241 petition opens, the applicant is first required to seek

authorization from the Court of Appeals for the Eleventh Circuit to file a second or

successive § 2255 petition).

Since there is no basis for a determination that § 2255 is inadequate or

ineffective to test the legality of Petitioner’s conviction, his § 2241 petition will be

dismissed for lack of jurisdiction. This dismissal has no effect on Petitioner’s

right to properly seek authorization from the Eleventh Circuit to file a second or

successive § 2255 petition. An appropriate Order will enter.

BY THE COURT:

 s/ Mathew W. Brann 

Matthew W. Brann

United States District Judge

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