IN THE UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

JORGE A. MARTINEZ, :

:

Petitioner :

:

v. : CIVIL NO. 4:CV-15-1412

:

WARDEN L. U. ODDO : (Judge Brann)

:

Respondent :

MEMORANDUM

July 28, 2015

Background

Jorge A. Martinez, an inmate presently confined at the Allenwood United

States Penitentiary, White Deer, Pennsylvania (USP-Allenwood) filed this pro se

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

is Warden L. U. Oddo of USP-Allenwood. Petitioner’s request to proceed in forma

pauperis will be granted for the sole purpose of the filing of this matter with this

Court.

Petitioner, who was previously employed as an anesthesiologist, was

convicted of 8 counts of distribution of controlled substances, 15 counts of mail

fraud, 10 counts of wire fraud, 21 counts of health care fraud, and 2 counts of

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health care fraud resulting in the death of patients following a jury trial in the

United States District Court for the Northern District of Ohio. Martinez was

subsequently sentenced on June 14, 2006 to serve a term of life imprisonment. 

His conviction and sentence were affirmed on direct appeal. See United States v.

Martinez, 588 F.3d 301 (6th Cir. 2009).

Petitioner also previous sought relief with the sentencing court via a petition

pursuant to 28 U.S.C. § 2255 which was initiated in October 2011. See Doc. 2, p.

42. His action was dismissed by the district court on procedural grounds.1

 By

decision dated May 29, 2015 the United States Court of Appeals for the Sixth

Circuit denied Martinez’s application for a certificate of appealability. See id.

The Petitioner’s pending action partially challenge his conviction. Martinez

only seeks habeas corpus relief with respect to his convictions on two counts of

health care fraud resulting in the death of patients. His petition claims that

pursuant to the standards announced by the United States Supreme Court in 

United States v. Burrage, __ U.S. ___, 134 S.Ct. 881 (2014) he is actually and

factually innocent of those two crimes. In Burrage, the Supreme Court in

1 The district court initially dismissed Petitioner’s § 2255 motion for

exceeding the 20 page limitation set forth by the local rules of court. However, that

determination was remanded by the Court of Appeals with instruction that Martinez

be granted opportunity to file a compliant motion. Thereafter, Petitioner failed to

submit a timely compliant § 2255 motion with the district court.

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addressing a sentencing enhancement issue held that death only results from drug

trafficking when the use of the controlled substance is the but for cause of the

victim’s death. It added that a penalty enhancement can only be applied if a jury

finds beyond a reasonable doubt that the victim’s use of a drug distributed by the

defendant was a but for cause of death. 

Martinez presently asserts that the two victims in his case died as a result of

overdosing on illegal drugs “that this Movant did not prescribe to them.” Doc. 2,

p. 2. Therefore, he asserts that this § 2241 should be entertained because he is

seeking relief based upon an intervening change in the law announced in Burrage.

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 Martinez’s contention that

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

detention at USP-Allenwood. 

When challenging the validity of a federal sentence and not its execution,2

 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 §

2 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 2006 conviction and

sentence which transpired in the Northern District of Ohio. Thus, he must do so by

following the requirements of § 2255. As previously noted, Petitioner filed a

direct appeal and a § 2255 action. However, both of those efforts were initiated

prior to the 2014 Burrage decision. Moreover, there is no indication by Petitioner

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that he previously sought relief seek authorization from the appropriate Court of

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

his present Burrage claim.3

Martinez’s instant claims are based upon a contention that his conduct is no

longer criminal as a result of some change in the law. However, it is noted that

“the Supreme Court has not made Burrage retroactive.” Alvarez v. Hastings, 2015

WL 4092657 *2 (S.D. Ga. July 6, 2015); Harrington v. Holland, 2015 WL

2065945 * 3 (E.D. Ky May 4, 2015) (Burrage not retroactively applicable to cases

on collateral review); Powell v. United States, 2014 WL 5092762 * 2 (D. Conn.

Oct. 10, 2014). Nor has Petitioner shown that he is unable to present his claims via

a § 2255 proceeding. As recognized by the Hon. 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

3

 Petitioner indicates that he filed a letter with the Court of Appeals giving

notice of the Burrage decision which was not acted upon. See Doc. 2, pp. 38-9. 

However, his Burrage argument was never presented to the district court and his letter

does not warrant a determination that his Burrage claim was properly presented to the

Court of Appeals.

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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, Martinez’s pending claims do 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

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 appropriate Court of Appeals to file a second or successive

§ 2255 petition).

Consequently, 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 Sixth Circuit to file a

second or successive § 2255 petition. An appropriate Order will enter.

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BY THE COURT:

 s/ Mathew W. Brann 

Matthew W. Brann

United States District Judge

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