MEZA v. ZICKEFOOSE
Filing
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OPINION. Signed by Judge Jerome B. Simandle on 6/29/2011. (dmr)(n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ALFREDO DIGNO MEZA,
:
Civil Action No. 10-4667 (JBS)
Petitioner,
:
v.
:
DONNA ZICKEFOOSE,
:
Respondent.
O P I N I O N
:
APPEARANCES:
Alfredo Digno Meza, Pro Se
#59542-004
F.C.I. Fort Dix
P.O. Box 2000
Fort Dix, NJ 08640
Kristin Lynn Vassallo
Office of the U.S. Attorney
970 Broad Street
Newark, NJ 07102
Attorney for Respondent
SIMANDLE, District Judge
Petitioner Alfredo Digno Meza, a prisoner currently confined
at the Federal Correctional Institution at Fort Dix, New Jersey,
submitted a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241.
Respondent filed a motion to dismiss for lack of
jurisdiction (docket entry 5).
Because this Court lacks
jurisdiction to consider this petition, and it is not in the
interest of justice to transfer, this Court will grant the motion
and dismiss the petition.
2255.
See 28 U.S.C. §§ 1631, 2243, 2244(a),
BACKGROUND
According to the record provided by Respondent, Petitioner
was convicted in the United States District Court for the
Southern District of Florida for conspiracy to possess cocaine
and possession of cocaine with intent to distribute, while on
board a vessel subject to the jurisdiction of the United States,
in violation of 46 App. U.S.C. §§ 1903(a), (j), and 18 U.S.C. §
2.1
Petitioner appealed his conviction and sentence to the Court
of Appeals for the Eleventh Circuit, which affirmed on February
11, 2002.
Petitioner’s motion for a rehearing was denied by the
Court of Appeals.
On October 7, 2003, Petitioner filed a motion to vacate his
conviction pursuant to 28 U.S.C. § 2255, arguing that he was not
1
Title 46 of the United States Code Appendix, Section
1903(a) states:
a) Vessels of United States or vessels subject to
jurisdiction of United States. It is unlawful for any
person on board a vessel of the United States, or on
board a vessel subject to the jurisdiction of the
United States, or who is a citizen of the United States
or a resident alien of the United States on board any
vessel, to knowingly or intentionally manufacture or
distribute, or to possess with intent to manufacture or
distribute, a controlled substance.
Section 1903(j) states:
j) Attempt or conspiracy to commit offense. Any person
who attempts or conspires to commit any offense defined
in this chapter shall be subject to the same penalties
as those prescribed for the offense, the commission of
which was the object of the attempt or conspiracy.
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notified of his right to meet with a consular representative from
his country, he was innocent of the statute charged, and his
attorney was ineffective.
He also filed a supplemental
application alleging his sentence was unconstitutional under
Blakely v. Washington, 542 U.S. 296 (2004).
Petitioner’s motion
was denied in 2004, and his attempts to relitigate and for a
certificate of appealability were denied.
In 2008, Petitioner
filed a motion to reduce his sentence under 18 U.S.C. §
3582(c)(2), which was denied by the District Court, with the
Court of Appeals affirming the denial in 2009.
Petitioner filed this habeas petition on September 13, 2010.
Petitioner argues that he was improperly prosecuted under the
statutes in question, depriving him of due process, that the
United States was not authorized to try Petitioner by the nation
in which the vessel was registered (Panama), and that his rights
under the Vienna Convention were violated when a consular
representative was not notified of his arrest.
In lieu of an Answer, Respondent filed a Motion to Dismiss,
arguing that this Court lacks jurisdiction under 28 U.S.C. § 2241
to consider the petition.
Petitioner filed a response to the
motion on December 1, 2010, and a “motion for liberal pleading in
support of Petitioner’s habeas and reply brief.”
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DISCUSSION
A.
Jurisdiction
A pro se pleading is held to less stringent standards than
more formal pleadings drafted by lawyers.
See Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
(1972).
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 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); Siers
v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S.
1025 (1989);
see also 28 U.S.C. §§ 2243, 2255.
Section 2241 of Title 28 of the United States Code provides
in relevant part:
(c) The writ of habeas corpus shall not extend to a
prisoner unless-... He is in custody in violation of
the Constitution or laws or treaties of the United
States.
28 U.S.C. § 2241(c)(3).
“Section 2241 is the only statute that confers habeas
jurisdiction to hear the petition of a federal prisoner who is
challenging not the validity but the execution of his sentence.”
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Coady v. Vaughn, 251 F.3d 480, 485-486 (3d Cir. 2001).
A
petition for a writ of habeas corpus under 28 U.S.C. § 2241 in
the district where the prisoner is confined provides a remedy
“where petitioner challenges the effects of events ‘subsequent’
to his sentence.”
Gomori v. Arnold, 533 F.2d 871, 874 (3d Cir.
1976)(challenging erroneous computation of release date).
See
also Soyka v. Alldredge, 481 F.2d 303 (3d Cir. 1973)(where
petitioner alleged a claim for credit for time served prior to
federal sentencing).
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 under
28 U.S.C. § 2255 has been the “usual avenue” for federal
prisoners seeking to challenge the legality of their confinement.
See also Chambers v. United States, 106 F.3d 472, 474 (2d Cir.
1997); Wright v. United States Bd. of Parole, 557 F.2d 74, 77
(6th Cir. 1977); United States v. Walker, 980 F. Supp. 144, 14546 (E.D. Pa. 1997) (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).
Congress amended § 2255 as part of the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1214 ("AEDPA").
Section 2255 states, in relevant part:
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
5
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.
28 U.S.C. § 2255.2
In this case, although Petitioner filed his case as a
petition for habeas relief pursuant to § 2241, it is clear that
his argument has its jurisdictional basis under § 2255.
In fact,
Petitioner has filed motions under § 2255 in the district of
conviction, which were denied, with the denials affirmed by the
Court of Appeals.
Nonetheless, Petitioner seems to argue in this
petition that § 2255 would be “inadequate or ineffective” to
provide relief because he is “actually innocent” of the
sentencing enhancement.
2
A motion to vacate, correct or set aside a sentence under
§ 2255 must be filed in the sentencing court within one year of
the latest of: (1) the date on which the judgment of conviction
became final; (2) the date of the removal of any impediment to
making such a motion that was created by unlawful government
action; (3) the date on which a right asserted by a movant was
first recognized by the United States Supreme Court and made
retroactive to cases pending on collateral review; or (4) the
date on which a movant could have discovered the facts supporting
the claim[s] presented through the exercise of due diligence.
See 28 U.S.C. § 2255(f). Furthermore, once a prisoner has filed
one § 2255 motion, he may not file a second or successive motion
unless he first obtains a certification from a panel of the
appropriate Court of Appeals permitting him to do so on the
grounds of (1) newly discovered evidence that would clearly and
convincingly negate the possibility that a reasonable fact finder
would have found the movant guilty of the offense charged, or (2)
a previously unavailable and retroactively applicable new rule of
constitutional law. See 28 U.S.C. § 2255(h).
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B.
Actual Innocence Claim
Here, with regard to his claims of “actual innocence,”
liberally construing the petition, Petitioner claims that relief
under § 2255 now is barred and, thus, is “inadequate or
ineffective.” Cf. In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997).
Section 2255 contains a “safety valve” for use where “it
appears that the remedy by motion is inadequate or ineffective to
test the legality of [Petitioner's] detention.”
In Dorsainvil,
the Third Circuit held that the remedy provided by § 2255 is
“inadequate or ineffective,” permitting resort to § 2241 (a
statute without timeliness or successive petition limitations),
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.”
Dorsainvil, 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.
See id.
To the contrary,
the court was persuaded that § 2255 was “inadequate or
ineffective” in the unusual circumstances presented in Dorsainvil
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
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Supreme Court, may not have been criminal conduct at all.
See
id. at 251-52.
Thus, under Dorsainvil, this Court would have jurisdiction
over Petitioner’s petition if, and only if, Petitioner
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 v. U.S. ex rel. Miner, 290 F.3d 536, 539 (3d Cir.
2002); Okereke v. United States, 307 F.3d 117, 120 (3d Cir.
2002).
A claim of “actual innocence” relates to innocence in fact,
not innocence based on a legal, procedural defect.3
A litigant
must present evidence of innocence so compelling that it
undermines the court's confidence in the trial's outcome of
conviction; thus, permitting him to argue the merits of his
3
Before AEDPA, the Supreme Court held that a petitioner
otherwise barred from filing a successive § 2255 motion “may have
his federal constitutional claim considered on the merits if he
makes a proper showing of actual innocence.” Herrera v. Collins,
506 U.S. 390, 404 (1993). This rule, the fundamental miscarriage
of justice exception, is only granted in extraordinary
situations, such as where it is shown that the constitutional
violations probably resulted in the conviction of one who is
actually innocent. See id.; McCleskey v. Zant, 499 U.S. 467, 494
(1991). The “claim of actual innocence is not itself a
constitutional claim, but instead a gateway through which a
habeas petitioner must pass to have his otherwise barred
constitutional claim considered on the merits.” Herrera, 506
U.S. at 404.
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claim.
A claim of actual innocence requires a petitioner to
show: (a) new reliable evidence not available for presentation at
the time of the challenged trial; and (b) that it is more likely
than not that no reasonable juror would have convicted the
petitioner in the light of the new evidence.
See House v. Bell,
547 U.S. 518 (2006); Schlup v. Delo, 513 U.S. 298, 324, 327
(1995).
Furthermore, the Supreme Court, in House, emphasized
that the gateway standard for habeas review in claims asserting
actual innocence is extremely demanding and permits review only
in the “extraordinary” case.
See House, 547 U.S. at 536-37
(citing Schlup, 513 U.S. at 327).
In this case, it is clear that Petitioner has not presented
evidence that undermines the court’s confidence in his
conviction.
Petitioner's claim of “actual innocence” is not
based on any new evidence suggesting any “innocence in fact.”
Absent any demonstration of new reliable evidence of his factual
innocence, Petitioner cannot show that it is more likely than not
that no reasonable juror would have convicted him.
See House v.
Bell, 547 U.S. 518, 537 (2006); Schlup v. Delo, 513 U.S. 298,
324, 327 (1995).
Whether or not Petitioner is entitled to a
change in sentence is within the purview of the sentencing court,
and is not reviewable in this habeas petition.
Consequently, Petitioner is not entitled to relief on his
“actual innocence” claim.
Further, Petitioner has failed to
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demonstrate circumstances that would render § 2255 an inadequate
or ineffective remedy; nor does he represent an intervening
change in the law that renders non-criminal the crime for which
he was convicted.
Petitioner also fails to demonstrate any
circumstances amounting to a “complete miscarriage of justice”
that would justify application of the safety-valve language of §
2255 rather than its gatekeeping requirements.
Finally, this
Court notes that the Court of Appeals for the Third Circuit has
held that a motion under § 2255 is the appropriate vehicle for
bringing a claim based on the Vienna Convention, not § 2241.
See
United States v. Smith, 207 Fed. Appx. 146, 147 (3d Cir. 2006).
Therefore, this Petition must be considered a second or
successive motion under § 2255, which Petitioner has not received
authorization to file, and over which this Court lacks
jurisdiction.
C.
See 28 U.S.C. § 2255.
Transfer
Whenever a civil action is filed in a court that lacks
jurisdiction, “the court shall, if it is in the interest of
justice, transfer such action ... to any other such court in
which the action ... could have been brought at the time it was
filed.”
28 U.S.C. § 1631.
Here, Petitioner does not assert any ground for relief
justifying authorization to file a second or successive § 2255
petition.
Petitioner filed a § 2255 motion, which was reviewed
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by the Court of Appeals for the Eleventh Circuit, as well as
motions for reconsideration of his denials, which were also
denied.
Thus, it does not appear that transfer would be in the
interest of justice.
Accordingly, Respondent’s motion to dismiss
will be granted, and the petition will be dismissed.
CONCLUSION
For the reasons set forth above, this action will be
dismissed.
An appropriate order follows.
s/ Jerome B. Simandle
JEROME B. SIMANDLE
United States District Judge
Dated:
June 29, 2011
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