The opinion of the court was delivered by: S. James Otero United States District Judge
On December 14, 2009, petitioner Michael Tyrone Lyle, a federal inmate confined in this judicial district, filed a purported petition for writ of habeas corpus under 28 U.S.C. § 2241 challenging his conviction in the United States District Court for the District of Maryland case no. CR JFM-02-0395 on the ground the district court improperly accepted his guilty plea to an unindicted offense.
"On October 20, 2003, the [district] court sentenced [petitioner] to 210 months incarceration after he pleaded guilty to conspiracy to distribute and possess with intent to distribute narcotics in violation of 21 U.S.C. § 846 [count 1] and possession of a firearm in furtherance of a drug trafficking crime in violation of 19 U.S.C. § 924(c) [count 3]. On April 13, 2005, the court entered an amended judgment sentencing [petitioner] to a total term of 123 months incarceration. [Petitioner] did not appeal."*fn1 Lyle v. United States, 2007 WL 3071429, *1 (D. Md.) (unreported opinion) (citation omitted). In 2007, petitioner filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255 in the District Court for the District of Maryland, and the district court found the motion was untimely and dismissed it on October 17, 2007.*fn2 Id.
On September 4, 2008, petitioner filed a second motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 in the District Court for the District of Maryland, which the district court found to be a successive petition and dismissed for lack of subject matter jurisdiction on September 19, 2008. Lyle v. United States, 2008 WL 4372385, *1 (D. Md.).
On March 23, 2009, petitioner filed his third motion to vacate sentence under 28 U.S.C. § 2255 in the District Court for the District of Maryland, and the district court also found this motion to be a successive motion and dismissed it for lack of subject matter jurisdiction. Lyle v. United States, 2009 WL 901523, *1 (D. Md.).
Finally, on June 3, 2009, petitioner filed a petition for writ of mandamus in the Fourth Circuit Court of Appeals "seeking an order directing the district court to correct its jurisdictional error."*fn3
In re Lyle, 332 Fed. Appx. 110, *1 (4th Cir. 2009). However, the Fourth Circuit denied the petition on August 26, 2009, finding "[m]andamus may not be used as a substitute for appeal." Id.
The Court, having reviewed the pending habeas petition purportedly under Section 2241, has determined it is another motion to vacate, set aside or correct petitioner's sentence under 28 U.S.C. § 2255, rather than a habeas corpus petition under Section 2241. See Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (per curiam) ("[A] court must first determine whether a habeas petition is filed pursuant to § 2241 or § 2255 before proceeding to any other issue."). In making this determination, the Court has considered whether the pending action comes within Section 2255's "savings clause," and, for the reasons discussed below, has determined it does not.
"The general rule is that a motion under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner may test the legality of his detention, and that restrictions on the availability of a § 2255 motion cannot be avoided through a petition under 28 U.S.C. § 2241." Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006) (citations omitted), cert. denied, 127 S.Ct. 1896 (2007); Harrison v. Ollison, 519 F.3d 952, 955-56 (9th Cir. 2008). There is an exception to this general rule, however, known as the "escape hatch" or "savings clause," which provides that "[a] federal prisoner may file a habeas petition under § 2241 to challenge the legality of a sentence when the prisoner's remedy under § 2255 is 'inadequate or ineffective to test the legality of his detention.'"*fn4 Harrison, 519 F.3d at 956; Stephens, 464 F.3d at 897. The petitioner has the burden of demonstrating Section 2255 is "inadequate or ineffective." Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963). However, "the ban on unauthorized second or successive petitions does not per se make a § 2255 'inadequate or ineffective.'" Stephens, 464 F.3d at 898 (citation and internal quotation marks omitted); Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000). Here, petitioner does not explain why he did not, or could not, attempt to obtain authorization from the Fourth Circuit to file a second or successive motion under Section 2255 raising his claim. Thus, petitioner has failed to show his remedy under Section 2255 is "inadequate or ineffective" and he cannot invoke the "savings clause" to proceed under Section 2241.
Since the pending action is a motion to vacate sentence under 28 U.S.C. § 2255, and not a habeas corpus petition under Section 2241, this Court does not have jurisdiction to consider petitioner's motion.
See 28 U.S.C. § 2255(a) ("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." (emphasis added)). Here, the District of Maryland is the only proper forum for petitioner's Section 2255 motion. However, in light of petitioner's three previous Section 2255 motions, this Court declines to exercise its ...