1

"[M]atters 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) (per curiam) (citing Lee v. United States, 501 F.2d 494, 500 (8th Cir. 1974)). Such claims

are properly brought in a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Cradle v. United States ex

rel. Miner, 290 F.3d 536, 538-39 (3d Cir. 2002) (per curiam); Haugh v. Booker, 210 F.3d 1147, 1149 (10th Cir. 2000). 

In contrast, challenges to the validity of a federal prisoner's conviction or sentence must be presented in a motion

pursuant to 28 U.S.C. § 2255 in the district court that conducted his trial and imposed his sentence. See Rules 3 & 4

of the Rules Governing Section 2255 Proceedings for the United States District Courts. See also Cradle, 290 F.3d at

538; Chambers v. Romine, 41 F.App'x. 525, 526 (3d Cir. 2002); Briggs v. Levi, No. 08-1399, 2008 WL 1801099 (3d

Cir. Apr. 22, 2008) (per curiam); Miller v. United States, 564 F.2d 103, 105 (1st Cir. 1977); Capaldi v. Pontesso, 135

F.3d 1122, 1123 (6th Cir. 1998); Brown v. Mendez, 167 F.Supp.2d 723, 726 (M.D. Pa. 2001) ("As a general rule, a 

§ 2255 motion 'supersedes habeas corpus and provides the exclusive remedy' to one in custody pursuant to a federal

1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JOHN BAX, )

Petitioner, ) C.A. No. 07-348 Erie

)

v. )

) District Judge McLaughlin

HELEN J. MARBERRY, Warden, ) Magistrate Judge Baxter

Respondent. )

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that the petition for writ of habeas corpus be dismissed

with prejudice.

II. REPORT

Petitioner, John Bax, is a federal prisoner presently incarcerated at the Federal

Correctional Institution at McKean ("FCI McKean") in Bradford, Pennsylvania, which is located

within the Western District of Pennsylvania. He has filed a petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2241 [Document No. 3], in which he raises challenges to the judgment 1

Case 1:07-cv-00348-SJM-SPB Document 15 Filed 03/17/10 Page 1 of 7
court conviction.") (quoting Strollo v. Alldredge, 463 F.2d 1194, 1195 (3d Cir. 1972) (per curiam)). 

 

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Section 2255 provides, in pertinent part, that:

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.

28 U.S.C. § 2255(e) (emphasis added). The italicized portion of the statutory language is commonly referred to as

§ 2255's "savings clause" or "safety valve." Importantly, "[a] section 2255 motion is not 'inadequate or ineffective'

merely because the petitioner cannot meet the stringent gatekeeping requirements of section 2255 [and file another

§ 2255 motion in the district court where he was convicted and sentenced], Okereke v. United States, 307 F.3d 117,

120 (3d Cir. 2002), or because the sentencing court does not grant relief, Cradle v. United States ex rel. Miner, 290

F.3d 536, 539 (3d Cir. 2002) (per curiam)." David v. Grondolsky, 305 F.App'x 854, 855-56 (3d Cir. 2009) (per

curiam). See, e.g., Young v. Yost, No. 09-2803, 2010 WL 325785 (3d Cir. Jan. 29, 2010) (per curiam) ("Section 2255

is not 'inadequate or ineffective' merely because the [court of appeals] denied [the petitioner] permission to file a

second or successive § 2255 motion raising his present claim."). "Rather, the 'safety valve' provided under section

2255 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 law." David, 305 F.App'x at 856 (citing Okereke, 307 F.3d at 120 (citing In re Dorsainvil, 119 F.3d 245, 251 (3d

Cir. 1997)). It is the inefficacy of the remedy under § 2255, not the personal inability to use it, that is determinative,

and a habeas corpus petition pursuant to § 2241 is not an additional, alternative or supplemental remedy to 28 U.S.C.

2

of sentence imposed in February 1994 by the United States District Court for the Middle District

of Pennsylvania in United States v. Bax, No. 1:93-cr-00117 (M.D. Pa.). Specifically, Petitioner

argues that he was incorrectly classified as a "career offender," which resulted in a sentencing

enhancement under the United States Sentencing Guidelines ("U.S.S.G."). He asserts: (1) that

the sentencing court erred in applying post-offense convictions under the career offender

provision of the U.S.S.G. §§ 4B1.1 and 4B1.2; (2) that the predicate offenses did not qualify as

controlled substance offenses under the Guidelines; (3) that the predicate offenses could not be

reclassified as "violent" offenses by the sentencing court; (4) that the charging complaint was

insufficient proof to qualify him as a career offender; and (5) that his trial counsel was ineffective

for failing to obviate the career offender determination. Petitioner invokes the "savings clause"

of 28 U.S.C. § 2255, arguing that he is entitled to bring these claims pursuant to 28 U.S.C. 2

Case 1:07-cv-00348-SJM-SPB Document 15 Filed 03/17/10 Page 2 of 7
§ 2255. Cradle, 290 F.3d at 538-39. 

 

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This Court takes judicial notice of the dockets of the District Court for the Middle District of Pennsylvania and the

United States Court of Appeals for the Third Circuit cited herein, which are available for review via PACER. 

 

4

Respondent has attached the May 23, 1997, Memorandum and Order as Ex. 1 to its Response [Document No. 12].

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§ 2241 because § 2255 is inadequate and ineffective to test the legality of his detention. As

relief, he seeks an order from this Court directing that he be released from custody.

A. Relevant Factual and Procedural History

On October 12, 1993, following a two-day jury trial, the United States District Court for

the Middle District of Pennsylvania convicted Petitioner of conspiracy to manufacture and

distribute cocaine and "crack." On or around February 17, 1994, the court sentenced him to 286

months of imprisonment. (Document No. 75 in United States v. Bax, No. 1:93-cr-00117 (M.D.

Pa.)). The Third Circuit Court of Appeals affirmed his judgment of sentence on August 18, 3

1994. (8/18/94 Judgment Order in United States v. Bax, No. 94-7120 (3d Cir.)). 

On February 11, 1997, Petitioner filed a Motion to Vacate, Set Aside, or Correct his

sentence pursuant to 28 U.S.C. § 2255. In his § 2255 motion, he argued, inter alia, that his Fifth

Amendment rights had been violated because he had been classified incorrectly as a career

offender for sentencing purposes. On May 23, 1997, the sentencing court determined that

Petitioner "was properly sentenced as a career offender," and denied his motion. (Memorandum

and Order in Bax, No. 1:93-cr-00117 (M.D. Pa.)). The Third Circuit Court of Appeals denied

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Petitioner's application for a certificate of appealability on September 24, 1997. (9/24/97 Order

in United States v. Bax, No. 97-7335 (3d Cir.)). 

Case 1:07-cv-00348-SJM-SPB Document 15 Filed 03/17/10 Page 3 of 7
 

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Respondent has attached the February 20, 2001, Memorandum and Order as Ex. 2 to its Response [Document No. 12].

4

Petitioner next filed a motion with his sentencing court pursuant to Fed.R.Crim.P. 35(a)

and 18 U.S.C. § 3582(c) (1)(A)(i) to correct an "illegal sentence," which included his argument

that he had been incorrectly sentenced as a career offender. (See 2/20/01 Memorandum and

Order, in Bax, No. 1:93-cr-00117 (M.D. Pa.)). The sentencing court dismissed Petitioner's 5

motion on the basis that he was ineligible to seek relief under either Fed.R.Crim.P. 35(a) or 28

U.S.C. § 3582(c)(1)(A)(i). (Id.) Petitioner applied to the Third Circuit Court of Appeals for

leave to file a second or successive § 2255 motion. The court denied that application on April

20, 2001. (4/20/01 Order in United States v. Bax, No. 01-1685 (3 Cir.)). rd

Next, in July 2005, Petitioner filed a § 2241 petition with this Court, again challenging

his conviction and his sentence as a career offender, on the grounds that his remedy under § 2255

was inadequate and ineffective because his § 2255 motion was not successful and because he had

been denied leave to file a second or successive § 2255 motion. Bax v. Warden, FCI McKean,

No. 1:05-cv-00194 (W.D. Pa.). That case was assigned to the Honorable Sean J. McLaughlin

and referred to this Magistrate Judge.

On July 27, 2006, this Court issued a Report and Recommendation ("R&R"), explaining

that the petition was a collateral attack upon the legality of the sentence imposed by the District

Court for the Middle District of Pennsylvania that did not fall within § 2255's "savings clause,"

and that, therefore, this Court was without jurisdiction to consider the petition. (Document No.

17 in Bax, No. 1:05-cv-00194 (W.D. Pa.), attached hereto as Ex. A). Judge McLaughlin adopted

the R&R as the Opinion of the Court in a Memorandum Order dated August 26, 2006, and

Case 1:07-cv-00348-SJM-SPB Document 15 Filed 03/17/10 Page 4 of 7
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dismissed the petition. (Document No. 21 in Bax, No. 1:05-cv-00194 (W.D. Pa.), attached

hereto as Ex. B). Petitioner appealed the dismissal to the Third Circuit Court of Appeals, arguing

that § 2255's "savings clause" should apply to him because he was "actually innoc[ent] of the

elements needed to subject him to the career offender enhancement[.]" Bax v. Warden, FCI

McKean, 215 F.App'x 133, 134 (3d Cir. 2007). On January 31, 2007, the Third Circuit Court of

Appeals affirmed this Court's determination that it lacked jurisdiction to consider the petition and

that it did not fall within the ambit of § 2255's "savings clause." Id. 

In the meantime, in December 2005, Petitioner had filed a motion with his sentencing

court pursuant to Fed.R.Civ.P. 60(b)(6), challenging his classification as a career offender. The

sentencing court denied the motion on January 3, 2006, without reaching the merits of

Petitioner's claims, and noting that Petitioner had previously raised his career offender argument

in his original § 2255 motion. (Document Nos. 173 & 177 in Bax, No. 1:93-cr-00117 (M.D.

Pa.)). On July 21, 2006, the Third Circuit Court of Appeals issued an Order denying a certificate

of appealability and denying Petitioner leave to file a second or successive petition. (7/21/06

Order in United States v. Bax, No. 06-1231 (3d Cir.)). On December 11, 2006, the United States

Supreme Court denied a petition for writ of certiorari. Bax v. United States, 549 U.S. 1099

(2006). 

In the instant petition for writ of habeas corpus, which Petitioner filed pursuant to § 2241,

he once again argues that his confinement is unlawful because he was improperly classified as a

career offender. He also once again maintains that his claims fall within the savings clause of

§ 2255, thereby enabling him to challenge his sentence under § 2241. 

Case 1:07-cv-00348-SJM-SPB Document 15 Filed 03/17/10 Page 5 of 7
 

6

As set forth above, Judge McLaughlin adopted that R&R as the Opinion of the Court in a Memorandum Order dated

August 22, 2006 (Ex. B), and his decision in turn was affirmed by the Third Circuit Court of Appeals in Bax v.

Warden FCI McKean, 215 F.App'x 133 (3d Cir. 2007). 

 

7

28 U.S.C. § 2244(a) provides: "No circuit or district judge shall be required to entertain an application for writ of

habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it

appears that the legality of such detention has been determined by a judge or court of the United States on a prior

application for writ of habeas corpus, except as provided in section 2255." 

6

B. Discussion

The instant petition should be dismissed for three reasons. First, as set forth in the R&R

issued on July 27, 2006, in Bax, No. 1:05-cv-00194 (W.D. Pa.), this Court lacks subject matter

jurisdiction over Petitioner's challenges to his conviction and/or sentence. That R&R is attached

as Ex. A and it is incorporated herein in its entirety. See also notes 1 & 2, supra. Second, the 6

petition must be dismissed under the abuse of the writ doctrine, described by the Supreme Court

in McCleskey v. Zant, 499 U.S. 467, 491-92 (1991). See also Benchoff v. Colleran, 404 F.3d

812 (3d Cir. 2005); Zayas v. Immigration & Naturalization Serv., 311 F.3d 247 (3d Cir. 2002). 

Third, and finally, the petition is also subject to dismissal under 28 U.S.C. § 2244(a), which

provides that a petition for writ of habeas corpus filed under § 2241 should be dismissed as

successive if it raises issues that "either had been, or could have been, decided in" a previous

habeas action. Queen v. Miner, 530 F.3d 253, 255 (3d Cir. 2008) (per curiam). 7

C. Certificate of Appealability

Section 102 of AEDPA (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. Federal prisoner appeals from the denial of a § 2241 habeas corpus proceeding

Case 1:07-cv-00348-SJM-SPB Document 15 Filed 03/17/10 Page 6 of 7
7

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). As such, this Court makes no

certificate of appealability determination in this matter.

III. CONCLUSION

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

Habeas Corpus be dismissed with prejudice. 

Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule

72.D.2 of the Local Civil Rules, Petitioner is allowed to file objections in accordance with the

schedule established in the docket entry reflecting the filing of this Report and Recommendation. 

Failure to file timely objections may constitute a waiver of any appellate rights. See Nara v.

Frank, 488 F.3d 187 (3d Cir. 2007).

 

/s/ Susan Paradise Baxter 

SUSAN PARADISE BAXTER

United States Magistrate Judge

Dated: March 17, 2010

cc: The Honorable Sean J. McLaughlin

United States District Judge

Case 1:07-cv-00348-SJM-SPB Document 15 Filed 03/17/10 Page 7 of 7