DAVIS v. HOLLINGSWORTH

Filing 7

OPINION. Signed by Judge Noel L. Hillman on 3/5/2014. (drw)

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LORME KELLY DAVIS,
Petitioner,
v.
JORDAN R. HOLLINGSWORTH,
Warden,
Respondent.

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Civil Action No. 12-7830(NLH)

OPINION

APPEARANCES:
Lorme Kelly Davis
F.C.I. Fort Dix
P.O. Box 2000
Fort Dix, NJ 08640
Petitioner pro se

HILLMAN, District Judge
Petitioner Lorme Kelly Davis, a prisoner currently confined
at the Federal Correctional Institution at Fort Dix, New Jersey,
has submitted a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241 1 challenging his imprisonment pursuant to a

1

Section 2241 provides in relevant part:
(a) Writs of habeas corpus may be granted by the
Supreme Court, any justice thereof, the district

federal sentence imposed in the United States District Court for
the Southern District of Florida. 2
05-10018 (S.D. Fla.) 3

See U.S. v. Davis, Crim. No.

The sole respondent is Warden Jordan R.

Hollingsworth.
For the following reasons, this Court finds that it lacks
jurisdiction over this Petition and will transfer it to the U.S.
District Court for the Southern District of Florida.
I.

BACKGROUND

Petitioner asserts that in May 2005, he was seized by the
U.S. Coast Guard “in foreign waters,” after which he was
prosecuted under the Maritime Drug Law Enforcement Act
(“MDLEA”), 46 U.S.C. App. § 1901 et seq. 4
Memorandum, at 3.)

(Docket Entry No. 1,

In connection with his guilty plea in that

courts and any circuit judge within their respective
jurisdictions. ...
(c) The writ of habeas corpus shall not extend to a
prisoner unless-- ... (3) He is in custody in
violation of the Constitution or laws or treaties of
the United States ... .
2

This matter previously was administratively terminated for
failure to prepay the filing fee or to submit an application for
leave to proceed in forma pauperis. Petitioner has since paid
the filing fee. Accordingly, this matter will be re-opened.
3

This Court will take judicial notice of the Docket in
Petitioner’s criminal proceeding. See Arroyo v. Hollingsworth,
Civil No. 12-7889, 2013 WL 5816917, *1 n.2 (D.N.J. Oct. 29,
2013).
4

The Maritime Drug Law Enforcement Act is now codified at 46
U.S.C. §§ 70501-70507. See Act of Oct. 6, 2006, Pub.L. No. 109304, § 10(2), 120 Stat. 1485, 1658-89.
2

prosecution, Petitioner made a factual proffer in which he
admitted the following: that on May 20, 2005, he was aboard a
“go-fast” vessel “dead in the water” approximately 180 nautical
miles northwest of Colombia near the Serrana Bank in the
Caribbean Sea; that a boarding team from the U.S. Coast Guard
Cutter GALLITAN requested and was granted a Statement of No
Objection for Right of Visitation Boarding; that he claimed
Colombian citizenship at the time the “go-fast” vessel was
boarded; that the individuals aboard the “go-fast” vessel did
not claim any nationality for the vessel nor did the vessel
display any visible name, homeport, or flag; that the U.S. Coast
Guard boarding team recovered 60 bales (each bale containing 25
individually-wrapped packages) testing positive for cocaine and
weighing a total of 3909.11 pounds; and that on May 27, 2005,
the U.S. Coast Guard Cutter HARRIETT LANE transported him to Key
West, Florida, in the Southern District of Florida, the point of
entry where he entered the United States.

See U.S. v. Davis,

Crim. No. 05-10018 (S.D. Fla) (Docket Entry No. 38, Factual
Proffer).
Pursuant to his guilty plea, Petitioner was convicted in
the U.S. District Court for the Southern District of Florida of
one count of conspiracy to possess with intent to distribute
five kilograms or more of cocaine while on board a vessel
subject to the jurisdiction of the United States, in violation
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of 46 U.S.C. App. § 1903(j), and was sentenced to a term of
imprisonment of 135 months, to be followed by a three-year term
of supervised release.

See U.S. v. Davis, Crim. No. 05-10018

(S.D. Fla) (Docket Entries No. 37, Plea Agreement; No. 73,
Judgment).

On direct appeal, the Court of Appeals for the

Eleventh Circuit affirmed the conviction but vacated the
sentence, pursuant to U.S. v. Booker, 543 U.S. 220 (2005), and
remanded for resentencing.
(11th Cir.).

See U.S. v. Davis, No. 06-11368

On November 8, 2007, Petitioner was re-sentenced

to the same sentence of 135 months’ imprisonment to be followed
by a three-year term of supervised release.

See U.S. v. Davis,

Crim. No. 05-10018 (S.D. Fla.) (Docket Entry No. 102, Amended
Judgment).

On June 3, 2008, the Eleventh Circuit affirmed the

Amended Judgment.

See U.S. v. Davis, No. 07-15291 (11th Cir.). 5

The Docket of proceedings in the Southern District of Florida
does not reflect that Petitioner ever filed a motion pursuant to
28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.

5

In the Petition, Petitioner asserts that he then petitioned the
U.S. Supreme Court for a writ of certiorari. Any such
proceedings before the Supreme Court are not reflected on the
criminal docket. In addition, this Court has searched the
Supreme Court Docket and Westlaw and has not found any record of
a petition for writ of certiorari or denial of such a petition.
Accordingly, this Court cannot determine based on the
information before it when Petitioner’s criminal conviction
became final by the conclusion of direct review.
4

Here, Petitioner has filed a Petition for writ of habeas
corpus under 28 U.S.C. § 2241 asserting two grounds for relief:
(1) that, based on new case law out of the Court of Appeals for
the Eleventh Circuit, the United States had no jurisdiction to
arrest him, and (2) that he is illegally incarcerated because
the trial court had no jurisdiction to impose sentence.
II.

STANDARDS FOR A SUA SPONTE DISMISSAL

United States Code Title 28, Section 2243 provides in
relevant part as follows:
A court, justice or judge entertaining an application
for a writ of habeas corpus shall forthwith award the
writ or issue an order directing the respondent to
show cause why the writ should not be granted, unless
it appears from the application that the applicant or
person detained is not entitled thereto.
A pro se pleading is held to less stringent standards than
more formal pleadings drafted by lawyers.

Estelle v. Gamble,

429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
(1972).

See also Higgs v. Attorney General of the U.S., 655

F.3d 333, 339 (3d Cir. 2011) (“The obligation to liberally
construe a pro se litigant’s pleadings is well-established.”
(citing Estelle and Haines)).

A pro se habeas petition and any

supporting submissions must be construed liberally and with a
measure of tolerance.

See Royce v. Hahn, 151 F.3d 116, 118 (3d

Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d
Cir. 1989); United States v. Brierley, 414 F.2d 552, 555 (3d

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Cir. 1969), cert. denied, 399 U.S. 912 (1970).

Nevertheless, a

federal district court can dismiss a habeas corpus petition if
it appears from the face of the petition that the petitioner is
not entitled to relief.

See Lonchar v. Thomas, 517 U.S. 314,

320 (1996); Denny v. Schultz, 708 F.3d 140, 148 n.3 (3d Cir.
2013).

See also 28 U.S.C. §§ 2243, 2255.
III.

ANALYSIS

“It is axiomatic that federal courts are courts of limited
jurisdiction, and as such are under a continuing duty to satisfy
themselves of their jurisdiction before proceeding to the merits
of any case.”

Packard v. Provident Nat. Bank, 994 F.2d 1039,

1049 (3d Cir.) (citations omitted), cert. denied, 510 U.S. 946
(1993).

See also Gunn v. Minton, 133 S.Ct. 1059, 1064 (2013);

Bender v. Williamsport Area School District, 475 U.S. 534, 541
(1986).

Here, for the reasons set forth below, this Court finds

that it lacks jurisdiction to entertain this § 2241 Petition.
As noted by the Court of Appeals for the Third Circuit in
In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997), a motion to
vacate, set aside, or correct sentence under 28 U.S.C. § 2255
has been the “usual avenue” for federal prisoners seeking to
challenge the legality of their confinement.

See also Okereke

v. United States, 307 F.3d 117, 120 (3d Cir. 2002); United
States v. McKeithan, 437 F. App’x 148, 150 (3d Cir. 2011);
United States v. Walker, 980 F.Supp. 144, 145-46 (E.D. Pa. 1997)
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(challenges to a sentence as imposed should be brought under
§ 2255, while challenges to the manner in which a sentence is
executed should be brought under § 2241).

Motions under § 2255

must be brought before the court which imposed the sentence.
See 28 U.S.C. § 2255.

In addition, a one-year limitations

period applies to § 2255 motions.

See 28 U.S.C. § 2255(f).

Section 2255, however, contains a safety valve permitting
resort to § 2241, a statute without timeliness or successive
petition limitations, and which permits filing in the court of
confinement, where “it appears that the remedy by motion is
inadequate or ineffective to test the legality of [the
prisoner’s] detention.”

See 28 U.S.C. § 2255(e).

In

Dorsainvil, the Third Circuit held that the remedy provided by
§ 2255 is “inadequate or ineffective” where a prisoner who
previously had filed a § 2255 motion on other grounds “had no
earlier opportunity to challenge his conviction for a crime that
an intervening change in substantive law may negate.”

119 F.3d

at 251.
The court emphasized, however, that its holding was not
intended to suggest that § 2255 would be considered “inadequate
or ineffective” merely because a petitioner is unable to meet
the stringent gatekeeping requirements of § 2255.

Id.

To the

contrary, the court was persuaded that § 2255 was “inadequate or
ineffective” in the unusual circumstances presented in
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Dorsainvil only because it would have been a complete
miscarriage of justice to confine a prisoner for conduct that,
based upon an intervening interpretation of the statute of
conviction by the United States Supreme Court, may not have been
criminal conduct at all.

Id. at 251-52.

In Cradle v. U.S. ex rel. Miner, 290 F.3d 536 (3d Cir.
2002), the Court of Appeals emphasized the narrowness of the
“inadequate or ineffective” exception.

A § 2255 motion is

“inadequate or ineffective,” authorizing resort to § 2241, “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.”

Cradle, 290 F.3d at 538.

“It is the inefficacy of the

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

Id.

“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.

The provision exists to

ensure that petitioners have a fair opportunity to seek
collateral relief, not to enable them to evade procedural
requirements.”

Id. at 539.

Thus, under Dorsainvil and its progeny, this Court would
have jurisdiction over this Petition if, and only if, Petitioner
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demonstrates: (1) his “actual innocence,” (2) as a result of a
retroactive change in substantive law that negates the
criminality of his conduct, (3) for which he had no other
opportunity to seek judicial review.

See Dorsainvil, 119 F.3d

at 251-52; Cradle, 290 F.3d at 539; Okereke v. United States,
307 F.3d 117, 120 (3d Cir. 2002); Trenkler v. Pugh, 83 F.App’x
468, 470 (3d Cir. 2003).
Here, Petitioner argues that, under the recent Eleventh
Circuit case United States v. Bellaizac-Hurtado, 700 F.3d 1245
(11th Cir. 2012), the conduct for which he was convicted is no
longer considered to be a crime and he cannot now raise this
issue in a § 2255 motion.

In Bellaizac-Hurtado, a case decided

on direct appeal of a criminal conviction, the Eleventh Circuit
addressed “the scope of congressional power to proscribe conduct
abroad,” or, more specifically, “whether the Maritime Drug Law
Enforcement Act, 46 U.S.C. §§ 70503(a), 70506, exceeds the power
of Congress to ‘define and punish ... Offences against the Law
of Nations,’ U.S. Const. Art. I, § 8, cl. 10, as applied to the
drug trafficking activities [of the defendants].”
1247.

700 F.3d at

There, during a routine patrol of sovereign Panamanian

waters, the United States Coast Guard observed a wooden fishing
vessel operating without lights and without a flag.

The U.S.

Coast Guard informed Panamanian authorities, who pursued the
vessel until its occupants abandoned it and fled on land.
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Panamanian authorities searched the vessel, determined that it
contained 760 kilograms of cocaine, and later apprehended the
former occupants of the vessel on Panamanian land.

After an

exchange of diplomatic notes, the government of Panama consented
to the prosecution of the four suspects in the United States.
The Eleventh Circuit held that the Maritime Drug Law
Enforcement Act, as applied to the defendants there, was not a
constitutional exercise of Congress’s power “[t]o define and
punish ... Offenses against the Law of Nations” under Article I,
Section 8, clause 10 of the U.S. Constitution.

That is, the

Eleventh Circuit found that drug trafficking is not a crime
under customary international law and, thus, is not subject to
prosecution in the U.S. under the Offenses Clause for conduct
that occurs in the territorial waters of another nation.

The

Eleventh Circuit explicitly distinguished and reaffirmed,
however, its numerous precedents upholding the authority of
Congress to prosecute drug trafficking activities conducted in
international waters, under the Piracies and Felonies Clause,
which empowers Congress “[t]o define and punish Piracies and
Felonies committed on the high Seas,” see Article I, Section 8,
clause 10 of U.S. Constitution.

See Bellaizac-Hurtado, 700 F.3d

at 1257 (collecting cases).
Petitioner’s argument requires this Court to consider, in
the first instance, whether the conduct for which Petitioner was
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convicted occurred in the territorial waters of another nation
or in international waters, as this single fact determines the
applicability of Bellaizac-Hurtado to Petitioner’s conviction.
Petitioner does not describe the circumstances of his arrest in
the Petition and several supporting memoranda, except to state
that he was arrested “in foreign waters.”
Memorandum, at 3.)

(Docket Entry No. 1,

In his Factual Proffer in connection with

his guilty plea, Petitioner stated that he was arrested
approximately 180 nautical miles northwest of Colombia in the
Caribbean Sea.
The United States recognizes a territorial sea of 12
nautical miles.

See Argentine Republic v. Amerada Hess Shipping

Corp., 488 U.S. 428, 441 n.8 (1989) (“On December 28, 1988, the
President announced that the United States would henceforth
recognize a territorial sea of 12 nautical miles”); Presidential
Proclamation No. 5928, 1988 WL 1099307 (Dec. 27, 1988).

See

also United States v. McPhee, 336 F.3d 1269, 1273 (11th Cir.
2003) (“The United States generally recognizes the territorial
seas of foreign nations up to twelve nautical miles adjacent to
recognized foreign coasts.”) (citations omitted).

The United

Nations Convention on the Law of the Sea also recognizes a
territorial sea of 12 nautical miles.

See United Nations

Convention on the Law of the Sea, 1833 U.N.T.S. Art. 3 (entered
into force on November 16, 1994) (“Every State has the right to
11

establish the breadth of its territorial sea up to a limit not
exceeding 12 nautical miles, measured from baselines determined
in accordance with this Convention.”).

Petitioner has failed to

allege facts suggesting that his conduct is rendered noncriminal by the Eleventh Circuit’s Bellaizac-Hurtado decision.
He has failed to allege facts suggesting that he was arrested in
the sovereign waters of Colombia or any other nation; to the
contrary, he admitted in his criminal proceeding that he was
arrested 180 nautical miles from the coast of Colombia.
Accordingly, Petitioner has failed to bring his claims within
the Dorsainvil exception and this Court lacks jurisdiction over
the § 2241 Petition.
However, rather than dismiss the petition outright, because
Petitioner has never sought to collaterally attack his judgment
pursuant to § 2255, and in the interest of justice, the Court
will transfer this matter to the United States District Court
for the Southern District of Florida, to be considered by that
Court.

See 28 U.S.C. § 1631 (whenever a civil action is filed

in a court that lacks jurisdiction, “the court shall, if it is
in the interests of justice, transfer such action ... to any
other such court in which the action ... could have been brought
at the time it was filed”).

See also Arroyo v. Hollingsworth,

Civil No. 12-7889, 2013 WL 5816917, *3 (D.N.J. Oct. 29, 2013).

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IV.

CONCLUSION

For the reasons set forth above, this Court lacks
jurisdiction over the petition and will order its transfer to
the District Court for the Southern District of Florida.
An appropriate order follows.

At Camden, New Jersey

Dated:

s/Noel L. Hillman
Noel L. Hillman
United States District Judge

March 5, 2014

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