UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TOY BURTRON MADDEN, : CIVIL NO. 4:05-CV-1741

:

Petitioner : (Judge McClure)

:

v. : (Magistrate Judge Smyser)

:

RONNIE R. HOLT, Warden, :

:

Respondent :

REPORT AND RECOMMENDATION

Toy Burtron Madden filed a habeas corpus petition in

this court on August 26, 2005. He is a federal prisoner. 

He was convicted in the United States District Court for the

District of Maryland of bank robberies. Bank robbery is

prohibited under 18 U.S.C. § 2113. The penalty provided

for, upon a conviction, is a term of imprisonment of up to

20 years. § 2113(a). In addition, the law authorizes a

three year term of supervised release. 18 U.S.C. § 3583. 

Petitioner Madden was sentenced to two concurrent terms of

20 years. He was sentenced to a term of supervised release

of three years.

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The petitioner has not used a form 28 U.S.C. § 2241

habeas corpus petition form. In his petition, he presents

claims relating to the lawfulness of the sentence that he

received and claims relating to the effectiveness of the

representation provided for him by his attorney.

The petitioner is a prisoner at the Federal

Correctional Institution at Schuylkill, Minersville,

Pennsylvania, in the Middle District of Pennsylvania. His

petition was filed here. The warden of that institution is

the named respondent. The petitioner paid the filing fee. 

An order was issued to the named respondent, Ronnie R. Holt,

Warden, F.C.I. Schuylkill, to file a response to the

petition. 

A response to the petition on behalf of the named

respondent was filed on September 28, 2005. Doc. 7. The

response asserts that the petition should be dismissed on

the grounds that the District Court for the Middle District

of Pennsylvania does not have jurisdiction. The petitioner

filed a reply on October 13, 2005. Doc. 8.

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The petitioner was convicted in 1994 in the United

States District Court for the District of Maryland of two

robberies of the Maryland National Bank in Baltimore in 1992

and in 1993. His conviction was affirmed by the Fourth

Circuit Court of Appeals. United States v. Madden, 83 F. 3d

417 (4th Cir.), cert. denied, 519 U.S. 898 (1996). He has

also filed additional challenges to his conviction and

sentence in the Fourth Circuit and in the Third Circuit. 

28 U.S.C. § 2255 provides:

A prisoner in custody under sentence of a court

established by Act of Congress claiming the right to

be released upon the ground that the sentence was

imposed in violation of the Constitution or laws of

the United States, or that the court was without

jurisdiction to impose such sentence, or that the

sentence was in excess of the maximum authorized by

law, or is otherwise subject to collateral attack, may

move the court which imposed the sentence to vacate,

set aside or correct the sentence.

. . . .

An application for a writ of habeas corpus on

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

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motion is inadequate or ineffective to test the

legality of his detention. 

The types of claims that the petitioner is raising in

this case are the types of claims that, unless a § 2255

motion is inadequate or ineffective, should be brought by

way of a § 2255 motion in the district court of conviction. 

To be able to bring a § 2241 petition for a writ of

habeas corpus, as the petitioner has sought to do here, the

petitioner must establish that the remedy by a § 2255 motion

is inadequate or ineffective to test the legality of his

detention. The “inadequate or ineffective” language in

§ 2255 has been strictly construed. See Application of

Galante, 437 F.2d 1164, 1165-66 (3d Cir. 1971)(unfavorable

legal standards prevailing in circuit where sentencing court

located does not render § 2255 remedy inadequate or

ineffective); Millan-Diaz v. Parker, 444 F.2d 95, 97 (3d

Cir. 1971)(doubts about the administration of a § 2255

motion in a particular case do not make the remedy

inadequate or ineffective); United States ex rel. Leguillou

v. Davis, 212 F.2d 681, 684 (3d Cir. 1954)(even if the

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sentencing court incorrectly disposes of a proper motion

under § 2255 the proper remedy would be by appeal of that

decision and not a habeas corpus petition). 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.’” Galante, supra, 437 F.2d at 1165

(quoting Leguillou, supra, 212 F.2d at 684). 

28 U.S.C. § 2255 establishes a one-year statute of

limitations applicable to § 2255 motions. Also, before a

second or successive § 2255 motion may be considered by the

district court, it must be certified by a three judge panel

of the court of appeals to contain:

(1) newly discovered evidence that, if proven and

viewed in light of the evidence as a whole, would

be sufficient to establish by clear and convincing

evidence that no reasonable factfinder would have

found the movant guilty of the offense; or

(2) a new rule of constitutional law, made

retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable.

28 U.S.C. § 2255.

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“Section 2255 is not inadequate or ineffective merely

because the sentencing court does not grant relief, the oneyear statute of limitations has expired, or the petitioner

is unable to meet the stringent gatekeeping requirements of

the amended § 2255.” Cradle v. United States, 290 F.3d 536,

539 (3d Cir. 2002). “It is the inefficacy of the remedy,

not the personal inability to utilize it, that is

determinative” Id. at 538.

In In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997), the

Third Circuit addressed the issue of when a prisoner may

bring a § 2241 habeas petition after being denied leave to

file a successive § 2255 motion. Dorsainvil involved a

prisoner who sought to bring a successive § 2255 motion on

the basis of the United States Supreme Court’s decision in

Bailey v. United States, 516 U.S. 137 (1995). In Bailey the

Court held that a defendant may not be convicted of using a

firearm under 18 U.S.C. § 924(c) unless the government

proves that the defendant “actively employed the firearm

during and in relation to the predicate crime.” After the

Bailey decision the petitioner in Dorsainvil filed an

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application to file a successive § 2255 motion claiming that

on the basis of Bailey he was imprisoned for conduct that

the Supreme Court had determined is not illegal. The Third

Circuit held that a prisoner who was convicted and filed his

first § 2255 motion before the Bailey decision may not file

a second § 2255 motion based on Bailey because the second

motion does not meet the stringent requirements created by

the Antiterrorism and Effective Death Penalty Act for filing

a second § 2255 motion. Id. at 248. The Third Circuit went

on to indicate that although a prisoner may not file a

second § 2255 motion based on Bailey he may file a 28 U.S.C.

§ 2241 habeas corpus petition. Id. at 251. However, the

Third Circuit cautioned that:

We do not suggest that § 2255 would be

“inadequate or ineffective” so as to enable a

second petitioner to invoke § 2241 merely because

that petitioner is unable to meet the stringent

gatekeeping requirements of the amended § 2255. 

Such a holding would effectively eviscerate

Congress’s intent in amending § 2255. However,

allowing someone in Dorsainvil’s unusual position

- that of a prisoner who had no earlier

opportunity to challenge his conviction for a

crime that an intervening change in substantive

law may negate, even when the government concedes

that such a change should be applied retroactively

- is hardly likely to undermine the gatekeeping

provisions of § 2255. 

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119 F.3d at 251. 

In the instant case, the petitioner is not in a

position similar to the petitioner in Dorsainvil. As for

claims of ineffective assistance of counsel, the claims that

the petitioner raises in the instant petition could have

been included in the petitioner’s first § 2255 motion. The

fact that the trial court denied the petitioner’s prior §

2255 motion, that the petitioner may now be barred from

filing a second § 2255 motion by the one-year statute of

limitations or that the petitioner may not be able to meet

the stringent gatekeeping requirements in order to file a

second § 2255 motion does not render § 2255 inadequate or

ineffective to test the legality of the petitioner’s

detention. Cradle, supra, 290 F.3d at 539. As for the

Booker claims, Booker is not retroactive. Lloyd v. United

States, 407 F.3d 608, 614-616 (3d Cir. 2005). Accordingly,

the petitioner may not present his claims in a 28 U.S.C. §

2241 habeas petition.

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Based on the foregoing, it is recommended that the

petition for a writ of habeas corpus be dismissed and that

the case file be closed.

/s/ J. Andrew Smyser

 J. Andrew Smyser

 Magistrate Judge

Dated: November 18, 2005. 

 

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