LINNIMAN v. ZICKEFOOSE

Filing 13

OPINION. Signed by Judge Robert B. Kugler on 4/12/2013. (dmr)(n.m.)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RANDY J. LINNIMAN,

:
Civil Action No. 12-3098 (RBK)

Petitioner,

:

v.

:

DONNA ZICKEFOOSE,

:

Respondent.

OPINION

:

APPEARANCES:
Petitioner pro se
Randy J. Linniman
#70238-056
FCI Fort Dix
P.O. Box 2000
Fort Dix, NJ 08640
Attorney for Respondents
John Andrew Ruymann
Office of the US Attorney
402 East State Street
Suite 430
Trenton, NJ 08608
KUGLER, District Judge
Petitioner Randy J. Linniman, a prisoner currently confined
at FCI Fort Dix, has submitted a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241.1
1

Respondent made an

Section 2241 provides in relevant part:

(a) Writs of habeas corpus may be granted by the
Supreme Court, any justice thereof, the district courts
and any circuit judge within their respective
jurisdictions.

application for leave to file a Motion to Dismiss in Lieu of
Answer.

The Court granted Respondent’s request and a Motion to

Dismiss was filed (docket entry no. 12).
Because this Court lacks jurisdiction to consider this
Petition, this Court will grant the Motion to Dismiss and dismiss
the Petition for lack of jurisdiction.
I.

BACKGROUND

Petitioner pled guilty to unlawful transfer of a firearm and
unlawful possession of firearms with altered serial numbers in
the United States District Court for the Eastern District of
North Carolina on May 16, 2007.

Petitioner’s sentencing hearing,

at which he testified, was held on November 7 and 8, 2007.
Petitioner was sentenced to 120 months for the unlawful transfer
of a firearm and 48 months for the unlawful possession of
firearms with altered serial numbers.

The sentences were to be

served consecutively, totaling the time of imprisonment at 168
months.2

Petitioner appealed to the United States Court of

Appeals for the Fourth Circuit, where the sentence was affirmed.3

(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

Linniman v. United States, 2012 WL 405355, **1-2 (E.D.N.C.
Feb. 8, 2012).
3

United States v. Linniman, 318 Fed. Appx. 224, 2009 WL
729002 (4th Cir), cert. denied 130 S.Ct. 171 (2009).
2

Petitioner then filed his motion under 28 U.S.C. § 2255 to
vacate, set aside, or correct his sentence challenging the
sentence based on ineffective assistance of counsel and
requesting modification of his sentence.

The court there granted

a motion to dismiss the claims pursuant to Rule 12(b)(6) on
February 8, 2012.4
Petitioner filed the instant Petition with this Court to
challenge his federal sentence, stating that the remedy available
to him under 28 U.S.C. § 2255 is inadequate and ineffective to
examine the legality of his detention and asserts that
jurisdiction is proper here under 28 U.S.C. § 2241 pursuant to
the “savings clause” of § 2255.
page 4.)

(Petition, Docket entry no. 1,

Respondents bring their motion to dismiss arguing that

this Court lacks subject matter jurisdiction over the petition
under 28 U.S.C. § 2241 and therefore the Petition must be
dismissed.
II.
A.

DISCUSSION

Legal Standard
“Habeas corpus petitions must meet heightened pleading

requirements.”

McFarland v. Scott, 512 U.S. 849, 856 (1994).

A

petition must “specify all the grounds for relief” and set forth
“facts supporting each of the grounds thus specified.”

See 28

U.S.C. § 2254 Rule 2(c) (amended Dec. 1, 2004), applicable to §

4

Linniman v. United States, 2012 WL 405355 (Feb. 8, 2012).
3

2241 petitions through Habeas Rule 1(b).

A court presented with

a petition for 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
there.”

28 U.S.C. § 2243.

Thus, “[f]ederal courts are

authorized to dismiss summarily any habeas petition that appears
legally insufficient on its face.”

McFarland, 512 U.S. at 856;

see also United States v. Thomas, 221 F.3d 430, 437 (3d Cir.
2000); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985).
B.

Analysis
Here, Petitioner seeks habeas relief under 28 U.S.C. § 2241

related to his criminal conviction and sentence despite the fact
that he has previously filed an unsuccessful challenge to his
conviction by a motion under 28 U.S.C. § 2255.

Respondents have

moved to dismiss the Petition for lack of jurisdiction.

Second

or successive motions under § 2255 are not permitted except in
the instance of newly discovered evidence or a new rule of
constitutional law that has been made retroactive.
§ 2255(h).

See 28 U.S.C.

Neither of those conditions exist here.

As noted by the Court of Appeals for the Third Circuit in In
re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997), Section 2255 has
been the “usual avenue” for federal prisoners seeking to
challenge the legality of their confinement.

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See also Okereke v.

United States, 307 F.3d 117, 120 (3d Cir. 2002); United States v.
McKeithan, 437 Fed.Appx. 148, 150 (3d Cir. 2011); 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).

Motions under § 2255 must be brought

before the court which imposed the sentence.
2255.

See 28 U.S.C. §

A one-year limitations period applies to § 2255 motions.

See 28 U.S.C. § 2255(f).
Section 2255 does, however, contain 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
“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 a §
2255 remedy would be considered “inadequate or ineffective”
merely because a petitioner is unable to meet the stringent
gatekeeping requirements of § 2255.

Id.

Rather, the court was

persuaded that § 2255 was “inadequate or ineffective” in the

5

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.

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” exemption.

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 Petitioner’s petition if, and only if,
Petitioner demonstrates: (1) his “actual innocence,” (2) as a

6

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 at 120.
Here, Petitioner does not allege facts bringing his
conviction within the Dorsainvil exception.

Petitioner has not

demonstrated that his circumstances constitute the sort of
“complete miscarriage of justice” that would justify application
of the safety-valve language of § 2255 rather than its
gatekeeping requirements.
Accordingly, since the Dorsainvil exception does not apply
here, this Court lacks jurisdiction to entertain this challenge
to Petitioner’s conviction, which is essentially a second or
successive motion under § 2255.

Petitioner has previously

pursued his remedies with respect to his challenges to his
sentence and his requests have already been denied.

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.

Because Petitioner unsuccessfully raised his grounds for relief
in a previous 2255 petition, the Court finds that it is not in
the interests of justice to transfer this action.

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III.

CONCLUSION

For the reasons set forth above, Respondent’s motion to
dismiss is granted and the petition will be dismissed with
prejudice.

An appropriate order follows.

S/Robert B. Kugler
ROBERT B.KUGLER
United States District Judge

Dated: April 12, 2013

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