United States District Court, D. Massachusetts
MATTHEW W. BRANN UNITED STATES DISTRICT JUDGE
pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2241 was filed by Justin Pabon, an inmate
presently confined at the United States Penitentiary,
Lewisburg, Pennsylvania (USP-Lewisburg). Named as Respondent
is USP-Lewisburg Warden Ebbert. Petitioner has also filed an
in forma pauperis application which will be granted
for the purpose of filing this action with this Court.
Service of the petition has not been ordered.
Pabon states that he entered a guilty plea in the United
States District Court for the District of Massachusetts to
criminal charges pursuant to a plea agreement. Pabon
indicates that his resulting federal sentence was increased
from 27-33 months to 63-78 months under the Armed Career
Criminal Act (ACCA). One of the predicate convictions relied
upon as a basis for imposition of the enhancement was a
Massachusetts state conviction for assault and battery on a
public employee. According to the Petition, a direct appeal
and a petition seeking relief under 28 U.S.C. §2255 were
challenges the legality of his sentence enhancement under
United States v. Booker, 543 U.S. 220 (2005) and
Alleyne v. United States, 570 U.S., 133 S.Ct. 2151
(2013). See Doc. 1, p. 5 Petitioner contends that
the above described prior state conviction was improperly
relied upon for purposes of the ACCA.
has also filed a motion to supplement (Doc. 5) his petition.
This motion will be granted and Petitioner's supplemental
arguments will be considered. The supplement asserts that
Pabon is also seeking federal habeas corpus relief under the
grounds announced in Johnson v. United States, U.S.,
135 S.Ct. 2551 (2015) and Welch v. United States,
U.S., 136 S.Ct. 1257, 1262, (2016). See Doc. 5, p.
4. Petitioner adds that since he is foreclosed from filing a
successive § 2255 petition, that collateral remedy is
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,
No. 3:CV-07-472, 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.
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, 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, No. 4:CV-05-596, 2005 WL 1138479 *1
(M.D. Pa. May 13, 2005)(McClure, J.)(quoting Allen v.
Perini, 424 F.2d 134, 141 (6th Cir. 1970).
28, United States Code § 2241, vests the federal
district courts with jurisdiction to grant a writ of habeas
corpus to persons in custody in violation of the
Constitution, laws, or treaties of the United States. 28
U.S.C. § 2241(c)(3). A habeas corpus petition under
§ 2241 “allows a federal prisoner to challenge the
‘execution' of his sentence.” Woodall v.
Federal Bureau of Prisons, 432 F.3d 235, 241 (3d Cir.
2005). Federal habeas corpus review may be employed by a
prisoner to challenge either the fact or duration of his
confinement in prison. Preiser v. Rodriguez, 411
U.S. 475 (1973), Telford v. Hepting, 980 F.2d 745,
748 (3d Cir.1993). However, relief is available only
“where the deprivation of rights is such that it
necessarily impacts the fact or length of detention.”
Leamer v. Fauver, 288 F.3d 532, 540 (3d Cir. 2002).
he initiated his action before this Court, Pabon is
apparently arguing that he may bring his present claim via a
federal habeas corpus petition. It would appear that it is
Petitioner's contention that this Court has jurisdiction
over his § 2241 action by virtue of his ongoing
detention at USP-Lewisburg.
challenging the validity of a federal sentence and not its
execution, 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 § 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
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.
is clearly challenging the validity of his ACCA enhanced
sentence which was imposed by the District of Massachusetts.
He must do so by following the requirements of § 2255.
As recognized by the Honorable 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 last word on the proper construction of the
statute, which change rendered what had been thought to be