WILLIAMS v. UNITED STATES
Filing
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OPINION. Signed by Judge Robert B. Kugler on 9/10/2012. (TH, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BENJAMIN WILLIAMS,
Petitioner,
v.
UNITED STATES,
Respondent.
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Civil No. 10-6619 (RBK)
OPINION
APPEARANCES:
BENJAMIN WILLIAMS, Petitioner pro se
#30580-160
F.C.I. Fort Dix
P.O. Box 2000
Fort Dix, New Jersey 08320
MARK CHRISTOPHER ORLOWSKI, ESQ.
OFFICE OF THE U.S. ATTORNEY
402 East State Street, Room 430
Trenton, New Jersey 08608
Counsel for Respondent
KUGLER, District Judge
Petitioner, Benjamin Williams, a federal prisoner confined
at the Federal Correctional Institution in Fort Dix, New Jersey
(“FCI Fort Dix”), filed this habeas petition pursuant to 28
U.S.C. § 2241, challenging his federal sentence.
After receiving
permission from this Court to do so, the Government filed a
motion to dismiss the petition for lack of subject matter
jurisdiction.
(Docket entry no. 9).
Petitioner has not filed a
reply or traverse to the Government’s motion.
For the reason set forth below, the Court will grant the
Government’s motion and dismiss this habeas petition for lack of
jurisdiction, as it is a prohibited second or successive motion
under 28 U.S.C. § 2255.
I.
BACKGROUND
Petitioner was convicted in the United States District Court
for the Northern District of Ohio, for violations of 21 U.S.C. §
846, conspiracy to distribute and possess with intent to
distribute cocaine, and of 21 U.S.C. § 922(g)(1), felon in
possession of a firearm.
On September 21, 2006, the district
court sentenced Petitioner to a prison term of 130 months with 5
years of supervised release on the first count, and a concurrent
term of 120 months imprisonment, with three years supervised
release, on the latter charge.
(Petition at page 4; United
States v. Williams, No. 1:06-CR-116 (N.D. Ohio, March 7, 2006) at
docket entry no. 71).
Petitioner did not challenge his sentence between the time
of its imposition on September 21, 2006 through September 2010.
On September 24, 2010, Petitioner filed a Notice of Appeal to the
United States Court of Appeals for the Sixth Circuit.
The Sixth
Circuit dismissed the appeal as untimely given the lapse of more
than four years after the judgment of conviction was entered in
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the district court.
United States v. Benjamin Williams, No. 10-
4218 (6th Cir., Dec. 1, 2010).
Thereafter, Petitioner filed a motion to vacate his
sentence, pursuant to 28 U.S.C. § 2255, in the district court
where he was sentenced.
The Government filed a motion to dismiss
the motion as time-barred.
In an unpublished opinion, the
district court granted the Government’s motion and dismissed the
§ 2255 as untimely.
See United States v. Williams, 2011 WL
719140 (N.D. Ohio, Feb. 23, 2011).
Petitioner appealed from the
district court’s decision, but the appeal was dismissed as
untimely.
See Williams v. United States, Civil No. 11-3606 (6th
Cir., June 8, 2011, at docket entry no. 6).
Petitioner also filed a Rule 60(b)(6) motion before the
district court, which the court construed as a request to file a
second or successive § 2255 motion.
Consequently, the district
court transferred the action to the Sixth Circuit for a
determination as to whether Petitioner may file a second or
successive § 2255 motion.
See United States v. Williams, Civil
No. 10-2947 (N.D. Ohio).
Thereafter, on or about December 22, 2010, Petitioner filed
the instant habeas petition pursuant to 28 U.S.C. § 2241, in
which he challenges the execution of his sentence.
In
particular, Petitioner alleges that the sentence enhancement
imposed by the sentencing court pursuant to 21 U.S.C. § 851
should not have been imposed.
Further, Petitioner claims that
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the sentencing court improperly attributed 5-15 kilograms of
cocaine to Petitioner, rather than the less than 700 grams.
II.
A.
DISCUSSION
Standard of Review
Petitioner seeks a writ of habeas corpus pursuant to 28
U.S.C. § 2241(c)(3).1
That section states that the writ will not
be extended 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).
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).
B.
Jurisdiction
1
United States Code Title 28, Section 2241, provides in
pertinent part:
(a) Writs of habeas corpus may be granted by the
district courts 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.
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Here, it would appear that Petitioner is arguing that he is
entitled to habeas relief under § 2241, irrespective of the fact
that he had filed an earlier § 2255 motion before his sentencing
court, as well as appeals to the Sixth Circuit, and a Rule
60(b)(6) motion, which had been denied as untimely.
Indeed,
Petitioner never informed this Court as to the history of this
litigation.
Rather, Petitioner attempts to couch his claims as a
challenge to his sentence computation, which is cognizable under
a § 2241 habeas petition, when in actuality, he is challenging
the constitutionality of his 130-month sentence imposed by the
sentencing court.
Typically, collateral challenges to a conviction or sentence
are brought before the sentencing court, and not the district of
confinement.
As noted by the United States Court of Appeals for
the Third Circuit in In re Dorsainvil, 119 F.3d 245, 249 (3d
Cir.1997), § 2255 has been the “usual avenue” for federal
prisoners seeking to challenge the legality of their
confinement.2
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.
2
As a result of the practical difficulties encountered in
hearing a challenge to a federal sentence in the district of
confinement rather than the district of sentence, in its 1948
revision of the Judicial Code, Congress established a procedure
whereby a federal prisoner might collaterally attack his sentence
in the sentencing court. See 28 U.S.C. § 2255; Davis v. United
States, 417 U.S. 333, 343-44 (1974); United States v. Hayman, 342
U.S. 205, 219 (1952).
5
Supp. 144, 145-46 (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).
Generally, challenges to the validity of a federal
conviction or sentence by motions under § 2255 must be brought
before the Court which imposed the sentence.
See 28 U.S.C. §
2255; Davis v. United States, 417 U.S. 333 (1974); Okereke v.
United States, 307 F.3d 117, 120 (3d Cir. 2002).
In addition,
before a second or successive § 2255 motion is filed in the
district court, the petitioner must move in the appropriate court
of appeals for an order authorizing the district court to
consider the petition on the grounds of either (1) newlydiscovered evidence that would be sufficient to establish by
clear and convincing evidence that no reasonable factfinder would
have found the petitioner guilty of the offense or (2) a new rule
of constitutional law made retroactive by the Supreme Court.
28
U.S.C. §§ 2244(a), 2255.
Section 2255, however, contains a safety valve where “it
appears that the remedy by motion is inadequate or ineffective to
test the legality of [Petitioner’s] detention.”
In Dorsainvil, a
case involving a Bailey claim, 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
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opportunity to challenge his conviction for a crime that an
intervening change in substantive law may negate.”
251.
119 F.3d at
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 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
Supreme Court, may not have been criminal conduct at all.
Id. at
251-52.
Thus, under Dorsainvil, this Court would have jurisdiction
over Petitioner’s action 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.
119 F.3d at 251-52; see also Okereke, 307 F.3d
at 120; Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 539 (3d Cir.
2002).
In this case, Petitioner fails to demonstrate that he had no
other opportunity to seek judicial review with regard to the
claims now asserted in his petition.
In fact, as noted above,
Petitioner has not informed the Court that he attempted to
challenge his sentence on similar grounds but was unsuccessful in
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both his direct appeal and his first § 2255 motion.
Thus, it
would appear that Petitioner is seeking yet another opportunity
and a different court to challenge his sentence.
Petitioner also
does not cite any retroactive change in substantive law that
would negate the criminality of his conduct; and he plainly fails
to show that he had no other opportunity to seek judicial review.
He further fails to show that there is “newly discovered
evidence” that would negate his conviction.
2255(e)(2)(A)(ii).
See 28 U.S.C. §
Therefore, Petitioner has failed to
demonstrate circumstances that would render § 2255 an inadequate
or ineffective remedy.
At best, Petitioner would seem to argue that he has not had
the opportunity to present his arguments for relief because his
prior applications were denied as untimely.
Nevertheless, a
prior unsuccessful motion to vacate or correct a sentence does
not, of itself, demonstrate the inadequacy or ineffectiveness of
the § 2255 remedy.
Cir. 2010).
See Manna v. Schultz, 591 F.3d 664, 665 (3d
Moreover, the Third Circuit consistently has held
that a § 2255 motion is not rendered “inadequate or ineffective”
so as to allow invocation of a § 2241 habeas petition merely
because the petitioner is “unable to meet the stringent
gatekeeping requirements of the amended § 2255.”
Okereke, 307
F.3d at 120; Cradle, 290 F.3d at 539; United States v. Brooks,
230 F.3d 643, 647 (3d Cir. 2000).
See also United States v.
McKeithan, 437 Fed. Appx. 148, 150 (3d Cir. 2011); Marmolejos v.
Holder, 358 Fed. Appx. 289, 290 (3d Cir. 2009).
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Consequently, this habeas petition 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.
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.3
28 U.S.C. § 2255.
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.
This Court finds that it would not be in the interests of
justice to transfer this Petition to the Sixth Circuit given the
considerable amount of time that has elapsed from Petitioner’s
last § 2255 motion, which shows lack of diligence on Petitioner’s
3
Although this Court is reclassifying the petition as a
§ 2255 motion, no Miller notice and order is necessary to afford
Petitioner an opportunity to raise additional § 2255 grounds.
The purpose of the Third Circuit’s decision in United States v.
Miller, 197 F.3d 644 (3d Cir. 1999), was to provide fair warning
to petitioners whose petitions were being recharacterized as
§ 2255 motions so that they could ensure that all their claims
were fully raised in a single all-encompassing § 2255 petition.
Such warning, the Miller court reasoned, is necessary because
petitioners will thereafter be unable to file “second or
successive” § 2255 petitions without certification by the Court
of Appeals. Because Petitioner in this case already has filed an
earlier § 2255 motion, and a Rule 60(b) motion that was construed
as a second or successive § 2255 motion, both of which were
addressed by the sentencing Court, and because the current
petition is itself “second or successive,” no purpose would be
served by a Miller notice.
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part in this case, and which itself was denied as untimely.
Accordingly, this Petition will be dismissed for lack of
jurisdiction.
III.
CONCLUSION
For the reasons set forth above, this habeas action will be
dismissed with prejudice for lack of subject matter jurisdiction,
because it is a second or successive § 2255 motion challenging
petitioner’s federal sentence.
An appropriate order follows.
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
Dated: September 10, 2012
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