UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

JOHNNIE T. WARREN, :

:

Petitioner : No. 4:CV-05-1827

:

vs. : (Petition Filed 9/12/05) 

:

JOSEPH SMITH, Warden, : (Judge Muir)

:

Respondent :

ORDER

October 4, 2005

Johnnie T. Warren, an inmate presently confined in the

Lewisburg United States Penitentiary, Lewisburg, Pennsylvania,

filed, pro se, a petition for writ of habeas corpus pursuant to

28 U.S.C. § 2241. The required filing fee has been paid. 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.

Background

The petitioner was convicted in the United States

District Court for the District of Hawaii, of first-degree

murder, attempted murder and assault with a deadly weapon, in

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violation of 18 U.S.C. §§ 111 and 113. United States vs.

Warren, 984 F.2d 325 (9th Cir. 1993). He was sentenced to a term

of imprisonment of life, without parole, for the first-degree

murder charge; twenty years for the attempted murder charge; and

five years for the assault with a deadly weapon charge. Id. 

Warren filed a direct appeal of his conviction to the

United States Court of Appeals for the Ninth Circuit, which

reversed the conviction for murder and affirmed the convictions

for attempted murder and assault. Id. at 329-31. 

After a second trial on the murder charge, a jury again

found Warren guilty of first degree murder. United States vs.

Warren, 25 F.3d 890 (9th Cir. 1994). The district court

sentenced him to life without parole to run concurrent with his

previous sentences for attempted murder and assault. Id.

Warren then filed a direct appeal to the United States Court of

Appeals for the Ninth Circuit, which affirmed the conviction.

Id. Warren did not challenge his indictment or sentence in any

other post-conviction proceeding.

Petitioner now turns to this Court seeking relief

pursuant to § 2241. In his instant petition, Warren raises the

following grounds for relief:

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1. District Court lacked jurisdiction over

first-degree murder in the island of

Hawaii. 

2. No malice or premeditation was ever

shown. 

3. Ineffective assistance of counsel at new

trial. 

(Doc. No. 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 vs. Addonizio, 442 U.S. 178, 179 (1979). In the instant

case, Warren is clearly maintaining that both 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). 

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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 vs. 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 vs. 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

vs. Henman, 843 F.2d 1160, 1162 (9th Cir.), cert. denied, 488

U.S. 982 (1988); Litterio vs. 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 vs. 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

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and provides the exclusive remedy." Strollo vs. 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 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 vs. Lurie,

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

180 F.3d 753, 758 (6th Cir. 1999); Higgs vs. Hobbs, No. CA

99-1113- RV-C, 2000 WL 284277, at *3 (S.D. Ala. Feb. 29, 2000);

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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.

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Ambrosio vs. United States, No. 99CIV. 9626(DC), 94 CIV.

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

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 vs. United

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

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

this burden.

Additionally, Warren 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 follows.

AND NOW, IT IS HEREBY ORDERED THAT:

1. The petition for a writ of habeas corpus

is DISMISSED, without prejudice to any

right Warren may have to file a § 2255

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motion in the United States District

Court for the District of Hawaii. 

2. The Clerk of Court shall CLOSE this

case.

 s/Malcolm Muir

 

MUIR

United States District Judge

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