DIAZ- GUTIERREZ v. UNITED STATES OF AMERICA
Filing
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OPINION. Signed by Chief Judge Jerome B. Simandle on 12/19/2012. (dmr)(n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ALEJANDRO DIAZ-GUTIERREZ,
:
Civil Action No. 12-4184 (JBS)
Petitioner,
:
v.
:
UNITED STATES OF AMERICA,
Respondents.
OPINION
:
:
APPEARANCES:
Petitioner pro se
Alejandro Diaz-Gutierrez
#21300-058
FCI Fairton
PO Box 420
Fairton, NJ 08320
SIMANDLE, Chief Judge
Petitioner Alejandro Diaz-Gutierrez, a prisoner currently
confined at FCI Fairton, in Fairton, New Jersey, had previously
submitted a filing petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241, but had failed to pay the filing fee or name
a proper respondent.
Petitioner has now paid the $5 filing fee
and submitted an Amended Petition naming J.T. Shartle, Warden, as
a respondent party.
Since the filing fee has been paid, the
matter may be re-opened to file the Amended Petition.
Because this Court lacks jurisdiction to consider the
petition, and it is not in the interest of justice to transfer,
the Court will dismiss the Petition.
I.
BACKGROUND
The following facts are taken from the Amended Petition and
relevant court opinions.
Petitioner is presently confined pursuant to a sentence
imposed by the United States District Court, Western District of
North Carolina.
Petitioner did not offer any further information
in the Amended Complaint related to his underlying criminal
conviction, but a search of the Public Access to Court Electronic
Records (“PACER”) database shows two previous matters involving
Petitioner: United States v. Alejandro Diaz-Gutierrez, WDNC 3:07cr-0114, in which he was convicted for reentry of a deported
alien and sentenced to 71 months of imprisonment and two years of
supervised release, and Alejandro Diaz-Gutierrez v. United
States, WDNC 3:07-cv-0330, in which his motion to vacate, set
aside or correct his sentence pursuant to 28 U.S.C. § 2255 was
denied and dismissed.
According to facts set forth the court’s order in the 2255
motion, Petitioner had appealed his conviction, arguing that the
admission into evidence of a warrant of deportation had violated
the Confrontation Clause of the Sixth Amendment.
The Fourth
Circuit affirmed the conviction in an unpublished opinion, noting
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that the District Court had not erred in the admission of that
evidence.
See United States v. Gutierrez, 354 Fed. App’x 774
(4th Cir. 2009).
Petition for writ of certiorari was denied by
the United States Supreme Court.
Petitioner then filed the above referenced 2255 motion
within the court of conviction.
The court there denied and
dismissed the motion, holding that Petitioner’s claims were
procedurally barred because he did not raise the issues on direct
appeal, and also holding that Petitioner’s claims with respect to
ineffective assistance of counsel fail because he did not
establish either prong of the test set forth in Strickland v.
Washington, 466 U.S. 668, 687, 694 (1984).1
See Alejandro Diaz-
Gutierrez v. United States, WDNC 3:07-cv-0330, docket entry no.
2.
The United States Court of Appeals for the Fourth Circuit
denied Petitioner’s certificate of appealability.
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To prevail on a claim of ineffective assistance of
counsel, a habeas petitioner must show both that his counsel’s
performance fell below an objective standard of reasonable
professional assistance and that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
outcome would have been different. Strickland v. Washington, 466
U.S. 668, 687, 694 (1984). A “reasonable probability” is “a
probability sufficient to undermine confidence in the outcome.”
Strickland at 694. Counsel’s errors must have been “so serious
as to deprive the defendant of a fair trial, a trial whose result
is reliable.” Id. at 687. “When a defendant challenges a
conviction, the question is whether there is a reasonable
probability that, absent the errors, the factfinder would have
had a reasonable doubt respecting guilt.” Id. at 695.
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Petitioner then filed his section 2241 habeas petition here,
challenging the legality of his conviction.
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 §
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, despite the fact that
he has previously filed an unsuccessful challenge to his
conviction by a motion under 28 U.S.C. § 2255.
Second or
successive motions under § 2255 are not permitted except in the
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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.
Petitioner bases his challenges with respect to ineffective
assistance of counsel, claims that he made in his prior § 2255
petition.
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.
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, 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.
See
28 U.S .C. § 2255.
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
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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
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.
Here, Petitioner does not allege facts bringing his
conviction within the Dorsainvil exception.
Petitioner cannot
demonstrate 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.
To the contrary, here, the Petitioner
challenges the legality of his confinement, a challenge which
would generally fall within the scope of claims cognizable on
direct appeal or in a § 2255 motion.
Accordingly, since the Dorsainvil exception does not apply
here, this Court lacks jurisdiction to entertain this challenge
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to Petitioner’s conviction, which is essentially a second or
successive motion under § 2255.
Petitioner has previously
pursued his remedies 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, and
because Petitioner’s certificate of appealability was denied by
the United States Court of Appeals for the Fourth Circuit, the
Court finds that it is not in the interests of justice to
transfer this action.
III.
CONCLUSION
For the reasons set forth above, the Petition will be
dismissed without prejudice for lack of jurisdiction.
An
appropriate order follows.
s/ Jerome B. Simandle
Jerome B. Simandle
Chief Judge
United States District Court
Dated: December 19, 2012
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