IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DONALD GROSS, No. 4:23-CV-02088

Petitioner, (Chief Judge Brann)

v.

UNITED STATES OF AMERICA,

Respondent.

MEMORANDUM OPINION AND ORDER JANUARY 30, 2024 Petitioner Donald Gross, a federal inmate, filed the instant pro se petition for a writ of habeas corpus pursuant to

. Petitioner attempts to collaterally attack his supervised release revocation sentence in Case No. 1:11-cr- 00383-JKB entered in the District of Maryland.1 Because the petition was filed in the Middle District of Pennsylvania instead of the District of Maryland, it was opened as a petition pursuant to

pursuit to the savings clause in

(e). The Court lacks jurisdiction over this petition under

and will dismiss the petition. However, Petitioner is free to file a petition pursuant to

in the District of Maryland. I. BACKGROUND Petitioner pled guilty to one count of bank robbery under

(a), (d), and (f) and was sentenced on February 28, 2012, to a 100-month term of imprisonment followed by five years of supervised release by the District Court for the District of Maryland.2

On April 13, 2022, the District Court for the District of Maryland entered judgment finding that Petitioner admitted to violating his supervised release and sentencing Petitioner to 36 months of incarceration to run consecutive to any other terms of incarceration previously imposed.3 Petitioner appealed the judgment to

the United States Court of Appeals for the Fourth Circuit.4 This appeal is still pending.5 Petitioner filed the instant petition on December 18, 2023, seeking relief under

II. DISCUSSION This Section 2241 petition is before the Court for screening pursuant to

. The petition, has been given preliminary consideration pursuant to

Rule 4 of the Rules Governing Section 2254 Cases in the United States District

2 USA v. Gross et al., No. 1:11-cr-00383-JKB-1, Doc. 68. 3

Doc. 114. 4

Docs. 119, 210. 5 United States v. Gross, No. 22-4260 (4th Cir.). 6 Doc. 1. Courts,

(applicable to § 2241 petitions under Rule 1(b)). Rule 4 may be applied at the discretion of the district court as it is the duty of the court to

screen out frivolous applications and eliminate the burden that would be placed on the respondent by ordering an unnecessary answer.7 Here, the Court finds that it lacks jurisdiction and ordering an answer would be unnecessary. Therefore, the

Court will dismiss the petition. The Supreme Court “attribute[s] postrevocation penalties to the original conviction.”8 A federal criminal defendant’s conviction and sentence are ordinarily subject to collateral attack in a proceeding before the sentencing court

pursuant to

Petitioner should therefore have proceeded in the sentencing court under Section 2255.10 The Court recognizes that a defendant can challenge a conviction or

sentence under Section 2241 if a Section 2255 petition is “inadequate or ineffective to test the legality of his detention.”11 However, Section 2255(e) is reserved for exceedingly rare situations where it is “impossible or impracticable

7 Allen v. Perini,

(6th Cir. 1970). 8 United States v. Dees,

(3d Cir. 2006) (citing United States v. Johnson,

,

,

(2000) and United States v. Soto-Olivas,

(9th Cir. 1995)). 9 See United States v. Miller,

, 648 n. 2 (3d Cir. 1999); Coady v. Vaughn,

(3d Cir. 2001). 10 See

(a). 11

(e). to seek relief in the sentencing court,” such as when the sentencing court dissolves or when the prisoner is unable to be present at a necessary hearing.12

Attached to the instant petition is a proposed order titled “Writ of Habeas Corpus (2255)”. 13 Based on this and the petition urging “the Court to vacate the sentence,” the court construes this filing as a Section 2255 petition simply filed in

the incorrect court. Since a Section 2255 petition is neither inadequate or ineffective in this case, the court lacks jurisdiction to consider it under Section 2241.14 Therefore, the petition will be dismissed without prejudice to Petitioner filing such a petition in the District of Maryland.

III. CONCLUSION ACCORDINGLY, IT IS HEREBY ORDERED that: 1. Petitioner Donald Gross’ petition for a writ of habeas corpus pursuant to

is DISMISSED for lack of jurisdiction. 2. The Clerk of Court is directed to CLOSE this case.

BY THE COURT:

s/ Matthew W. Brann Matthew W. Brann Chief United States District Judge

12 Jones v. Hendrix,

, 473–77,

, 1866-68,

(2023). 13 See Doc. 1, p. 3. 14 See Cradle v. United States ex rel. Miner,

(3d Cir. 2002).