IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

OSVALDO ROSA, :

:

Petitioner :

:

v. : CIVIL NO. 4:CV-06-1578

:

JONATHAN MINER, WARDEN, :

ET AL., : (Judge Jones)

:

Respondents :

MEMORANDUM AND ORDER

August 21, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Osvaldo Rosa (“Petitioner” or “Rosa”), an inmate presently confined at the

Allenwood United States Penitentiary, White Deer, Pennsylvania (“USPAllenwood”), initiated this pro se petition for writ of habeas corpus pursuant to 28

U.S.C. § 2241. Petitioner’s request for leave to proceed in forma pauperis is

granted for the sole purpose of the filing of this action. Named as Respondents are

USP-Allenwood Warden Jonathan Miner and Attorney General Alberto Gonzalez.

Following a jury trial in the United States District Court for the Middle

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District of Florida, Rosa was convicted of conspiracy to possess with intent to

distribute and distribution of cocaine hydrochloride and conspiracy to import

cocaine hydrochloride. He was sentenced to a 512 month term of imprisonment

on October 20, 1998. 

 His conviction and sentence were affirmed on direct appeal to the United

States Court of Appeals for the Eleventh Circuit. Petitioner also admits that he

unsuccessfully collaterally challenged his conviction with a motion pursuant to 28

U.S.C. § 2255. 

His instant action asserts that his criminal sentence “is invalid due to the fact

that it failed to cite the statutory authority under Title 21 USC § 841(a)(1), (b)(1)

(A)(iii), Title 21 USC §851(a)(1),(2), (c)(2) Title 18 USC § 3559(a)(1)(A)” and the

United States Sentencing Guidelines “that invokes the power to enter

Judgment.(Rec. Doc. 1 at ¶ 10(a)). Petitioner is also presumably arguing that his

present action should be entertained because his § 2255 remedy is inadequate or

ineffective. As relief, he asks to be immediately released from confinement.

DISCUSSION:

Habeas corpus petitions brought under § 2241 are subject to summary

dismissal pursuant to Rule 4 ("Preliminary Consideration by the Judge") of the

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Rules Governing Section 2254 Cases in the United States District Courts, 28

U.S.C. foll. § 2254 (1977) (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 face of the petition and any

exhibits annexed to it that the petitioner is not entitled to relief in the district court,

the judge shall make an order for its summary dismissal and cause the petitioner to

be notified." 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 . . . ." Allen v. Perini, 424 F.2d 134, 141

(6th Cir.), cert. denied, 400 U.S. 906 (1970). Accord Love v. Butler, 952 F.2d 10,

15 (1st Cir. 1991).

A federal criminal defendant's sentence is 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). 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

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relief, unless it also appears that the remedy by motion is inadequate or ineffective

to test the legality of his detention" (emphasis added). 28 U.S.C. § 2255; Davis v.

United States, 417 U.S. 333, 343 (1974); Hill v. United States, 368 U.S. 424, 427

(1962); In re Dorsainvil, 119 F.3d 245, 249 (3rd Cir. 1997); In re Vial, 115 F.3d

1192, 1194 (4th Cir 1997); Application of Galante, 437, F.2d 1164, 1165 (3rd Cir.

1971). In his instant action, Rosa is clearly challenging the legality of his federal

criminal sentence which occurred in the Middle District of Florida.

In ruling on the issue of inadequate or ineffective, the appellate courts have

instructed that a collateral relief motion is inadequate or ineffective only where it is

established that some limitation of scope or procedure would prevent the collateral

remedy from affording the prisoner a full hearing and adjudication of his claim of

wrongful detention. See Galante, 437 F.2d at 1165 (3d Cir. 1971)(quoting United

States ex rel. Leguillou v. Davis, 212 F. 2d 681, 684 (3d Cir. 1954)). It has also

been established 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 collateral relief motions filed in the

sentencing court have been held to be insufficient in and of themselves to show that

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the motion remedy is inadequate and ineffective. Tripati v. Herman, 843 F.2d

1169, 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.), 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 § 2255 “supersedes habeas corpus and provides

the exclusive remedy.” Strollo v. Alldredge, 462 F.2d 1194, 1195 (3d Cir.)(per

curiam), cert. denied, 409 U.S. 1046 (1972).

Triestman v. United States, 124 F.3d 361 (2nd Cir. 1997), and Dorsainvil

also addressed what circumstances make a collateral relief remedy inadequate and

ineffective. The legislative limitations placed on collateral relief proceedings simply

do not render the remedy inadequate or ineffective so as to authorize pursuit of a

habeas corpus petition in this court. United States v. Brooks, 230 F.3d 643, 647

(3rd Cir. 2000); Dorsainvil, 119 F.3d at 251. “To hold otherwise would simply

effect a transfer of forum for the adjudication of successive challenges to the

validity of a conviction.” Kennemore v. True, Civil No. 98-1175, slip op. at 6.

(M.D. Pa. July 28, 1998)(Conaboy, J.).

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 Both the Triestman and Dorsainvil courts held that a § 2255 motion was

only “inadequate and ineffective” (thus allowing a petitioner to bring a § 2241

habeas corpus action) where the denial of a habeas action would raise serious

constitutional issues. Triestman, 124 F.3d at 377; Dorsainvil,119 F.3d at 249. The

serious constitutional issue was that a change in substantive law rendered the

conduct for which petitioner was convicted no longer criminal. Triestman, 124

F.3d at 366; Dorsainvil, 119 F.3d at 251. Thus, these cases set a high bar for what

a court will consider a serious constitutional issue sufficient to allow a petitioner to

bring a § 2241 petition to challenge a conviction or sentence.

Rosa’s present arguments do not fall within the narrow exception created by

Dorsainvil and Triestman. Specifically, there is no allegation by the Petitioner that

his claims are based on any newly discovered evidence. Likewise, there is no

contention that they are being raised pursuant to any new intervening substantive rule

of criminal law which can apply retroactively to cases on collateral review.

Unlike Dorsainvil, Petitioner’s claims are also not premised on any intervening

change in substantive law that would negate the criminal nature of his conduct with

respect to his federal conviction. Fundamental to Dorsainvil was the fact that the

petitioner may actually be innocent of the crime charged. In this case, Rosa’s

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claims appear to be solely on sentencing related issues. It is clear that the claims

for relief pending before this Court have nothing to do with the actual question of

Petitioner’s guilt. Rosa has also not presented any facts to show that the denial of

his habeas action would raise serious constitutional issues.

Consequently, since Rosa has not otherwise established that his remedy

under § 2255 is inadequate or ineffective under the standards announced in

Dorsainvil and Triestman, his petition for writ of habeas corpus will be dismissed

without prejudice. Petitioner, if he so chooses, may reassert his present claims

through an application seeking leave to file a successive § 2255 motion. 

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Petitioner is granted in forma pauperis status for the sole purpose of

the filing of this action.

2. The petition for writ of habeas corpus is dismissed without prejudice.

3. The Clerk of Court is directed to close this case. 

4. There is no basis for the issuance of a Certificate of Appealability. 

 s/ John E. Jones III

 John E. Jones III

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 United States District Judge

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