IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PATRICK LAMONT SIMS, )

)

Petitioner, )

)

v. ) Civil Action No. 04-381E

) JUDGE SEAN McLAUGHLIN

JAMES F. SHERMAN, ) MAGISTRATE JUDGE BAXTER

)

Respondent. ) 

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

For the following reasons it is respectfully recommended that the instant petition under

28 U.S.C. § 2241 be dismissed for lack of jurisdiction.

II. REPORT

A. Relevant History

Petitioner, Patrick Lamont Sims, is a federal prisoner housed within this district, but serving

a sentence imposed by the United States District Court of the Eastern District of Michigan in 1991.

His sentence for use of a machine gun was vacated by the trial court, but was then reinstated on

appeal. Petitioner was sentenced on remand to an aggregate term of 42 years 7 months incarceration,

and this sentence was affirmed on appeal. United States v. Sims, 41 F.3d 1508 (6th Cir. 1994), cert.

denied, 514 U.S. 1042 (1995). Sims's subsequent petition pursuant to 28 U.S.C. § 2255 was denied

in June, 1999.

Sims next filed a § 2241 petition in the United States District Court for the Eastern District of

Michigan in 2001. Sims simultaneously sought permission from the Court of Appeals for the Sixth

Circuit to file a successive §2255 petition (Docket #3, Exhibit B). The Sixth Circuit denied the

motion seeking leave to file a successive § 2255 petition (Id. at 2) and the district court likewise

denied the motion under § 2241 (Id). Petitioner has now resorted to this court, as the district of his

confinement. He asserts that he is entitled to challenge his conviction and sentence pursuant to

Castillo v. United States, 530 U.S. 120 (2000), in that his use of a machine gun during the offense was

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improperly treated as a sentencing consideration rather than as a separate element of the offense.

Petitioner also asserts that the conviction is invalid due to the rule announced in Bailey v. United

States, 516 U.S. 137 (1995), that the offense he was convicted of requires more than mere possession

of the illegal weapon. The Government has responded to petitioner's petition (Docket #3), petitioner

has filed a reply (Docket #6) and the petition is ripe for disposition.

B. Claims Generally Cognizable in Federal Habeas Corpus Proceedings

A prisoner may seek federal habeas relief only if he is in custody in violation of the

Constitution or federal law. 28 U.S.C. § 2254(a);Smith v. Phillips, 455 U.S. 209 (1982); Geschwendt

v. Ryan, 967 F.2d 877 (3d Cir.), cert. denied, 506 U.S. 977 (1992);Zettlemoyer v. Fulcomer, 923 F.2d

284 (3d Cir.), cert. denied, 502 U.S. 902 (1991). The purpose of a writ of habeas corpus is to challenge

the legal authority under which a prisoner is held in custody. Heck v. Humphrey, 512 U.S. 477

(1994); Allen v. McCurry, 449 U.S. 90 (1980)(the unique purpose of habeas corpus is to release the

applicant for the writ from unlawful confinement); Wolff v. McDonnell, 418 U.S. 539 (1974) (basic

purpose of the writ is to enable those unlawfully incarcerated to obtain their freedom); Preiser v.

Rodriguez, 411 U.S. 475 (1973); United States v. Hollis, 569 F.2d 199, 205 (3d Cir. 1977). The writ

supplies the mechanism by which prisoners may challenge the length of their custodial term. Fields

v. Keohane, 954 F.2d 945, 949 (3d Cir. 1992); Barden v. Keohane, 921 F.2d 476 (3d Cir. 1991). The

remedy is to free an inmate from unlawful custody.

As a general proposition “only matters concerning the conditions of confinement or the

execution of a sentence are within the subject matter jurisdiction of the court presiding in the district

in which a prisoner is incarcerated.” DeSimone v. Lacy, 805 F.2d 321, 323 (8th Cir. 1986) citing Lee

v. United States, 501 F.2d 494, 500 (8th Cir. 1974). Challenges to the validity of a federal prisoner’s

conviction or sentence should be presented to the sentencing court. Miller v. United States, 564 F.2d

103, 105 (1st Cir. 1977), cert. denied, 435 U.S. 931 (1978). “As a general rule, a § 2255 motion

‘supersedes habeas corpus and provides the exclusive remedy’ to one in custody pursuant to a federal

court conviction.” Brown v. Mendez, 167 F.Supp.2d 723, 726 (M.D. Pa. 2001) quoting Strollo v.

Alldredge, 463 F.2d 1194, 1195 (3d Cir.), cert. denied, 409 U.S. 1046 (1972). A habeas corpus

petition pursuant to § 2241 “‘is not an additional, alternative or supplemental remedy to 28 U.S.C. §

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2255.’” Id. quoting Myers v. Booker, 232 F.3d 902, 2000 WL 159967 at *1 (10th Cir. 2000).

Because Petitioner’s claims challenge the imposition of his sentence, rather than the execution

of his sentence, a habeas corpus petition filed under § 2241 is not the appropriate vehicle. When a

petitioner attempts to seek relief from the imposition of sentence under 28 U.S.C. § 2241, the habeas

petition is dismissed for lack of subject matter jurisdiction. 

Petitioner was convicted and sentenced by the United States District Court for the Eastern

District of Michigan. Thus, under § 2241 jurisprudence, the issues raised in the instant petition are

not within the jurisdiction of this Court. See Lee v. United States, 501 F.2d 494, 500 (8th Cir. 1974);

Miller v. United States, 564 F.2d 103, 105 (1st Cir. 1977), cert. denied, 435 U.S. 931 (1978) (challenge

to the validity of a federal prisoner’s conviction or sentence should be presented to the sentencing

court). This petition represents a collateral attack upon the legality of the sentence as imposed by the

sentencing judge. Such an attack is properly reserved for a petition filed pursuant to 28 U.S.C. § 2255

in the sentencing court.

C. The Savings Clause of 28 U.S.C. § 2255

Title 28 U.S.C. § 2255 provides, in pertinent part:

an application for a writ of habeas corpus in behalf of a prisoner who is authorized to

apply for relief by motion pursuant to [section 2255], shall not be entertained if it

appears that the applicant has failed to apply for relief by motion [to vacate sentence

pursuant to section 2255], to the court which sentenced him, or that such court has

denied him relief, unless it appears that the remedy by motion is inadequate or

ineffective to test the legality of his detention.

The italicized portion of the statutory language is commonly referred to as § 2255's “savings clause”

or “safety valve.” The Third Circuit has held that a § 2241 petition may (in limited situations) provide

an avenue of relief to federal prisoners in accordance with the savings clause provision of § 2255. In

re Dorsainvil, 119 F.3d 245 (3d Cir. 1997). The limited exception specifically outlined in that case

is not found here. 

Petitioner's argument that his remedy available under § 2255 is inadequate or ineffective is

unavailing. His argument concerning inadequacy is that any new § 2255 petition would be untimely.

He further argues that he wishes to raise claims premised upon cases decided since his § 2255 petition

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was denied, specifically in Castillo v. United States, 530 U.S. 120 (2000), and Bailey v. United States,

516 U.S. 137 (1995). Claims arising under these decisions would, Petitioner asserts, be barred should

he attempt to file a second or subsequent § 2255 petition. Thus, in effect, he is arguing that the § 2255

remedy is ineffective because he would not succeed in obtaining relief. 

The Dorsainvil Court used the “savings clause” to carve a limited exception to the general

proposition that a challenge to a conviction and imposition of sentence by a federal prisoner must be

brought only as a § 2255 claim. 119 F.3d 245. However, importantly, the Circuit did not create a §

2241 remedy for every federal prisoner who is unable to file a successive § 2255 petition. Rather,

Dorsainvil stands for the proposition that resort to § 2241 habeas corpus relief is warranted under the

“unusual circumstances” presented there. The court stated that where “a complete miscarriage of

justice” was evident because a prisoner was being punished for “an act that the law does not make

criminal thereby warranting resort to the collateral remedy afforded by § 2255, it must follow that it

is the same complete miscarriage of justice when the AEDPA amendment to § 2255 makes that

collateral remedy unavailable.” Dorsainvil, 119 F.3d at 251.

The Third Circuit went on to caution:

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’ 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.

Id. at 251. The court further cautioned that the “holding that in this circumstance § 2255 is inadequate

or ineffective is therefore a narrow one.” Id.

The Circuit further expounded on the relationship between its Dorsainvil decision and the

savings clause:

A § 2255 motion is inadequate or ineffective only where the petitioner demonstrates

that some limitation of scope or procedure would prevent a § 2255 proceeding from

affording him a full hearing and adjudication of his wrongful detention claim. It is the

inefficacy of the remedy, not the personal inability to use it, that is determinative.

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

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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. The

provision exists to ensure that petitioners have a fair opportunity to seek collateral

relief, not to enable them to evade procedural requirements.

Cradle v. United States of America, 290 F.3d 536, 538-39 (3d Cir. 2002) (emphasis added). Under

Cradle, Petitioner’s inability to bring a subsequent § 2255 motion to vacate sentence before his

sentencing court does not make that remedy “ineffective or inadequate to test the legality of his

detention” so as to allow him to proceed under § 2241. 

Therefore, this petition should be dismissed as lacking subject matter jurisdiction. 

D. Certificate of Appealability

Section 102 of the Antiterrorism and Effective Death Penalty Act (28 U.S.C. § 2253(as

amended)) codified standards governing the issuance of a certificate of appealability for appellate

review of a district court’s disposition of a habeas petition. Amended Section 2253 provides that “[a]

certificate of appealability may issue ... only if the applicant has made a substantial showing of the

denial of a constitutional right.” Where the federal district court has rejected a constitutional claim

on its merits, “the petitioner must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong...” Szuchon v. Lehman, 273 F.3d 299, 312

(3d Cir. 2001) quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000). A petitioner meets this standard

if he can show that the issue “is debatable among jurists, or that a court could resolve the issue

differently, or that the question deserves further proceedings.” McCracken v. Gibson, 268 F.3d 970,

984 (10th Cir. 2001). Under 28 U.S.C. § 2253(c)(3), the district court must identify which specific

issues satisfy the standard.

However, federal prisoner appeals from the denial of a § 2241 habeas corpus proceeding are

not governed by the certificate of appealability requirement. United States v. Cepero, 224 F.3d 256,

264-65 (3d Cir. 2000); 28 U.S.C. § 2253(c)(1)(B). 

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III. CONCLUSION

For the foregoing reasons, it is respectfully recommended that this Petition for Writ of Habeas

Corpus be dismissed for lack of jurisdiction.

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.1.4(B)

of the Local Rules for Magistrates, the parties are allowed ten (10) days from the date of service to file

objections to this report and recommendation. Any party opposing the objections shall have seven

(7) days from the date of service of objections to respond thereto. Failure to file timely objections may

constitute a waiver of any appellate rights.

/s/ Susan Paradise Baxter 

SUSAN PARADISE BAXTER

CHIEF UNITED STATES MAGISTRATE JUDGE

Dated: February 22, 2006

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