WATKINS v. UNITED STATES OF AMERICA

Filing 10

OPINION. Signed by Judge Renee Marie Bumb on 9/27/2012. (dmr)(n.m.)

NOT FOR PUBLICATION

[Dkt. Ent. 8]

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

UNTAVION DEMON WATKINS,
Petitioner,
v.
UNITED STATES,
Respondent.

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Civil No. 11-6677 (RMB)

OPINION

APPEARANCES:
UNTAVION DEMON WATKINS, Petitioner pro se
#22510-058
F.C.I. Fort Dix
P.O. Box 2000
Fort Dix, New Jersey 08620
JOHN ANDREW RUYMANN, ESQ.
OFFICE OF THE U.S. ATTORNEY
402 East State Street, Room 430
Trenton, New Jersey 08608
Counsel for Respondent
BUMB, UNITED STATES DISTRICT JUDGE
Petitioner, Untavion Demon Watkins, 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. 8).

Petitioner filed a reply or

traverse to the Government’s motion on or about February 21,
2012.

(Docket entry no. 9).
For the reasons set forth below, the Court will grant the

Government’s motion and dismiss this habeas petition for lack of
jurisdiction.
I.

BACKGROUND

On or about October 2, 2008, Petitioner was convicted in the
United States District Court for the Western District of North
Carolina, pursuant to his plea of guilty to possession with
intent to distribute cocaine base and aiding and abetting same,
in violation of 21 U.S.C. §§ 841(a)(1) and 851, and 18 U.S.C. §
2.

On February 26, 2009, the district court sentenced Petitioner

to a prison term of 172 months with 5 years of supervised
release.

(Petition at page 2; Declaration of John Andrew Ruymann

(“Ruymann Decl.”) at Ex. 2 - Judgment of Conviction).
Petitioner did not challenge his sentence between the time
of its imposition on February 26, 2009, until he filed the
instant § 2241 habeas petition on or about November 14, 2011.
Petitioner admits that he did not file a direct appeal, because
allegedly, on advice of counsel, he could have received a
sentence of life imprisonment or mandatory minimum of 20 years
imprisonment due to a sentence enhancement under 21 U.S.C. § 851.
Petitioner therefore pled guilty to receive a 15 year prison

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term.

Petitioner also did not file a motion to vacate or set

aside his sentence under 28 U.S.C. § 2255.
On or about November 14, 2011, Petitioner filed the instant
habeas petition pursuant to 28 U.S.C. § 2241, in which he
challenges his sentence.

In particular, Petitioner alleges that,

pursuant to a recent Supreme Court decision, Carachuri-Rosendo v.
Holder, 130 S.Ct. 2577 (2010), and United States v. Simmons, 649
F.3d 237 (4th Cir. 2011), the sentencing court erred in relying
on Petitioner’s 2003 North Carolina drug conviction for enhancing
his federal sentence pursuant to 21 U.S.C. § 851, because that
underlying drug conviction from 2003 was not a “felony drug
offense,” as defined in 21 U.S.C. § 802(44), since Petitioner was
not imprisoned for more than one year.1
Petitioner further asserts that he is entitled to habeas
relief under § 2241 pursuant to the “safety-valve” clause of 28
U.S.C. § 2255, where “§ 2255 proves inadequate or ineffective to
test the legality of ... detention.”

In re Vial, 115 F.3d 1192,

1194 (4th Cir. 1997)(citing 28 U.S.C. § 2255).

Petitioner argues

that “he is entitled to habeas relief [under § 2241] because he
is ‘actually innocent’ of the crime because he was enhance [sic]
under §§ 851, which was incorrect at the time of sentencing.”
(Petition at pg. 6).

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Petitioner states that his 2003 North Carolina drug
conviction carried a maximum sentence of 8 months imprisonment.
Petitioner was sentenced to six to eight months imprisonment
suspended with 36 months supervised probation.
3

On February 9, 2012, the Government filed a motion to
dismiss the petition for lack of subject matter jurisdiction.
(Docket entry no. 8).

Petitioner filed a reply or traverse on

February 21, 2012, in which he stated that “he is not Appealing
sentence, but the way his sentence was conduct base on the 851
enhancement of his sentence.
his guilty.”

(Petitioner’s Reply at pg. 2).
II.

A.

His sentence was incorrect but not

DISCUSSION

Standard of Review
Petitioner seeks a writ of habeas corpus pursuant to 28

U.S.C. § 2241(c)(3).2

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

2

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.
4

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
Here, it appears Petitioner is arguing that he is entitled

to habeas relief under § 2241, because (1) he is actually
innocent, and (2) the sentence enhancement was incorrect.
Petitioner admits that he did not directly appeal his conviction
or sentence, and it appears that he has never filed a motion to
vacate or correct his sentence under § 2255.

Petitioner seems to

be aware that a § 2255 motion filed at the time he brought his §
2241 petition would have been dismissed as untimely under §
2255(f).
Typically, collateral challenges to a conviction or sentence
are brought before the sentencing court and not the district
court where the petitioner is confined.

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.3

See also Chambers v. United

3

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
5

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, 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,

the Third Circuit held that the remedy provided by § 2255 is

States, 417 U.S. 333, 343-44 (1974); United States v. Hayman, 342
U.S. 205, 219 (1952).
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“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.”

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 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
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claims now asserted in his petition.

At best, Petitioner’s

argument that he has not had the opportunity to present his
arguments for relief because a § 2255 motion at this stage would
untimely.

Nevertheless, 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).
Moreover, to the extent Petitioner is claiming actual
innocence, such claim also fails to warrant habeas relief in this
instance.

First, a freestanding claim of actual innocence has

never been explicitly recognized by the Supreme Court.

See House

v. Bell, 547 U.S. 518 (2006); Baker v. Yates, 2007 WL 2156072
(S.D. Cal. July 25, 2007) (“In practice, however, the Supreme
Court has never explicitly held that a freestanding innocence
claim is available during habeas review, even in a death penalty
case.”).

In a noncapital case such as this, an assertion of

actual innocence is ordinarily “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 v. Collins, 506 U.S. 390,

404, 113 S.Ct. 853, 122 L.Ed. 2d 203 (1993); Whitby v. Dormire, 2
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Fed. Appx. 645, at *1 (8th Cir. 2001); Mansfield v. Dormire, 202
F.3d 1018, 1023-24 (8th Cir. 2000).
In House, the United States Supreme Court was presented with
a freestanding claim of innocence, but it “decline[d] to resolve
this issue.”

House, 126 S.Ct. at 2087.

The Supreme Court did,

however, provide some insight into what might be required to
prove such a claim.

Id. (noting that “whatever burden a

hypothetical freestanding innocence claim would require, this
petitioner has not satisfied it”).

The Court recognized, as it

did in Herrera, that the standard for any freestanding innocence
claim would be “‘extraordinarily high,’” id. (quoting Herrera,
506 U.S. at 417), and it would require more than the showing
required to make a successful gateway innocence claim.

Id. at

2087 (“The sequence of the Court’s decisions in Herrera and
Schlup4-first leaving unresolved the status of freestanding
claims and then establishing the gateway standard-implies at the
least that Herrera requires more convincing proof of innocence
than Schlup.”).

Even assuming that such a freestanding claim

could be raised, Petitioner in this instance has not met or even
approached an “extraordinarily high” standard here.

Indeed, his

allegations wholly fail to support any factual innocence with
respect to the crime for which he was convicted and sentenced.
Petitioner does not allege that he is actually innocent of the
crimes for which he was convicted, either his federal conviction

4

Schlup v. Delo, 513 U.S. 298, 327 (1995).
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or the prior state court conviction on which his sentence
enhancement is based.

Rather, Petitioner simply argues that his

federal sentence should not have been enhanced because his
earlier state drug conviction is now purportedly invalid under
subsequent case law.
However, this claim that Petitioner is “innocent” of the
sentence enhancement because of the intervening decisions in
Carachuri-Rosendo, 1505 S.Ct. 2577 and Simmons 649 F.3d 237 is
insufficient to invoke this Court’s jurisdiction under § 2241.
The safety valve under § 2255 does not apply when an inmate
challenges the enhancement of his sentence as Petitioner does
here.

See United States v. Brown, 456 F. App’x 79, 81 (3d Cir.

2012); Selby v. Scism 453 F. App’x 266 (3d Cir. 2011); Adams v.
Schultz, 253 App’x 234, 2007 WL 3257244, *1 (3d Cir. 2007).
Moreover, this Court notes that the Simmons case challenged a
sentence enhancement on direct appeal rather than in a § 2255
motion or other collateral review.
Therefore, Petitioner has failed to demonstrate
circumstances that would render § 2255 an inadequate or
ineffective remedy.

As stated above, Petitioner fails to show

any intervening change in the law that renders non-criminal the
counts for which he was convicted.

For the same reasons,

Petitioner’s arguments also fail to demonstrate any circumstances
amounting to a “complete miscarriage of justice” that would
justify application of the safety-valve language of § 2255 rather

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than its gatekeeping requirements.

Therefore, this Petition must

be dismissed for lack of jurisdiction.5

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 Western District of
North Carolina or the Fourth Circuit given the fact that any §
2255 motion filed, even if related back to the date of filing of
this action, would be deemed untimely under § 2255(f).
Accordingly, this Petition will be dismissed for lack of
jurisdiction.

5

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,
because it is apparent that a motion under § 2255 would be deemed
untimely, even at the time that Petitioner filed this action on
or about November 14, 2011. 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 allencompassing § 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 this action was
untimely when filed, no purpose would be served by a Miller
notice.
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III.

CONCLUSION

For the reasons set forth above, this habeas action will be
dismissed with prejudice for lack of subject matter jurisdiction.
An appropriate order follows.
s/Renée Marie Bumb
RENEE MARIE BUMB
United States District Judge
Date:

September 27, 2012

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