CERON v. HOLLINGSWORTH

Filing 7

OPINION FILED. Signed by Judge Renee Marie Bumb on 6/27/13. (js)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SILVIO OREJUELA CERON,
Petitioner,
v.
JORDAN R. HOLLINGSWORTH,
Respondent.

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Civil No. 12-7776 (RMB)
OPINION

APPEARANCES:
SILVIO OREJUELA CERON, Petitioner pro se
#39461-018
F.C.I. Fort Dix
P.O. Box 2000
Fort Dix, N.J. 08640

JOHN ANDREW RUYMANN, Counsel for Respondent
Office of the U.S. Attorney
District of New Jersey
402 East State Street
Room 430
Trenton, N.J. 08608

BUMB, District Judge:
Silvio Orejuela Ceron, a federal inmate confined at FCI Fort
Dix in New Jersey, filed a Petition for a Writ of Habeas Corpus under
28 U.S.C. § 2241 challenging his imprisonment pursuant to a federal
sentence imposed in the United States District Court for the Middle
District of Florida.

Having thoroughly reviewed all papers filed

by Petitioner and the answer from Respondent, this Court will dismiss
the Petition for lack of jurisdiction.
I.

BACKGROUND
On July 28, 2009, Petitioner entered a guilty plea in the United

States District Court for the Middle District of Florida for
conspiracy to operative a semisubmersible vessel without nationality
and with intent to evade detection, in violation of 18 U.S.C. §§
2285(a) and (b); aiding and abetting to operate a semi-submersible
vessel without nationality and with intent to evade detection, 18
U.S.C. §§2285(a) and (b); conspiracy to possess with intent to
distribute five kilograms or more of cocaine while aboard a
vessel subject to the jurisdiction of the United States, in
violation of 46 U.S.C. §§ 70503(a)(a), 70506(a)(b); 21 U.S.C. §
960(b)(1)(B)(ii); and aiding and abetting to possess with intent
to distribute five kilograms or more of cocaine while aboard a
vessel subject to the jurisdiction of the United States, in
violation of 46 U.S.C. §§ 70503(a)(1), 70506(a) and (b); 21
U.S.C. § 960(b)(1)(B)(ii) and 18 U.S.C. § 2.

(Resp’t’s Br. 10.)

On

October 16, 2009, Petitioner was sentenced to 168 months in prison.
(Id.)
Petitioner’s Presentence Report indicates that Petitioner and
the other vessel crew members were intercepted and arrested by the
U.S. Coast Guard in international waters approximately 38 nautical
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miles northeast of Isla Gorgona, Colombia. (Resp’t’s Br., Ruymann
Decl. ¶ 2.)

Moreover, in his petition, Petitioner states that he

was apprehended approximately 48 miles from the coast of Colombia.
(Pet’r’s’ Mem. 3.)
Petitioner is now incarcerated at FCI Fort Dix in New Jersey
and signed his § 2241 Petition on December 18, 2012.

In his

memorandum, Petitioner argues that pursuant to United States v.
Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir. 2012), the sentencing
court was without jurisdiction to impose a sentence, and the “act
for which Petitioner was convicted is no longer considered to be a
crime, and he cannot raise this issue in a § 2255 motion.”
Mem. 1.)

(Pet’r’s

In the answer, Respondent argues that Petitioner was

apprehended in international waters and therefore the holding in
Bellaizac-Hurtado does not apply to him and this Court lacks
jurisdiction under § 2241.

(ECF No. 6.)

II. DISCUSSION
Section 2241 of Title 28 of the United States Code provides that
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).

A challenge to the

validity of a federal conviction or sentence must be brought under
28 U.S.C. § 2255.

See Davis v. United States, 417 U.S. 333 (1974);

Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002).
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This

is because 28 U.S.C. § 2255 expressly prohibits a district court from
entertaining a challenge to a prisoner’s federal sentence under §
2241 unless the remedy by motion under § 2255 is “inadequate or
ineffective to test the legality of his detention.”

See 28 U.S.C.

§ 2255(e);1 see Cradle v. U.S. ex rel. Miner, 290 F.3d 536 (3d Cir.
2002); In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997); Millan-Diaz
v. Parker, 444 F.2d 95 (3d Cir. 1971).
A § 2255 motion is inadequate or ineffective, authorizing resort
to § 2241, only where the petitioner demonstrates that he “had no
prior opportunity to challenge his conviction for a crime that an
intervening change in substantive law could negate with retroactive
application.”

Okereke v. United States, 307 F.3d 117, 120 (3d Cir.

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The “inadequate or ineffective” language was necessary because the
Supreme Court held that the substitution of a collateral remedy which
is neither inadequate nor ineffective to test the legality of a
person’s detention does not constitute a suspension of the writ of
habeas corpus.” Swain v. Pressley, 430 U.S. 372, 381 (1977).
Specifically, § 2255(e) provides:
An application for a writ of habeas corpus [pursuant to
28 U.S.C. § 2241] in behalf of a prisoner who is authorized
to apply for relief by motion pursuant to this section,
shall not be entertained if it appears that the applicant
has failed to apply for relief, by motion, to the court
which sentenced him, or that such court has denied him
relief, unless it also appears that the remedy by motion
is inadequate or ineffective to test the legality of his
detention.
28 U.S.C. § 2255(e).

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2002) (citing Dorsainvil, 119 F.3d at 251).

For example, in

Dorsainvil, the Third Circuit held that § 2255 was inadequate or
ineffective for Dorsainvil’s claim that he was imprisoned for conduct
that the Supreme Court ruled in Bailey v. United States, 516 U.S.
137 (1995), was not a crime, where the Supreme Court issued Bailey
after Dorsainvil’s § 2255 motion was denied on the merits and the
Third Circuit determined that Dorsainvil could not meet either of
the gatekeeping requirements under 28 U.S.C. § 2255(h) to authorize
the filing of a second or successive § 2255 motion.2

See Dorsainvil,

119 F. 3d at 250 (“A Supreme Court decision interpreting a criminal
statute that resulted in the imprisonment of one whose conduct was
not prohibited by law presents exceptional circumstances where the
need for the remedy afforded by the writ of habeas corpus is
apparent”).
Here, Petitioner claims that he is imprisoned for conduct that
the Eleventh Circuit deemed non-criminal in United States v.
Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir. 2012), after his

2

Section 2255(h) provides that a second or successive § 2255 motion
must be certified by a panel of the appropriate court of appeals to
contain “(1) newly discovered evidence that, if proven and viewed
in light of the evidence as a whole, would be sufficient to establish
by clear and convincing evidence that no reasonable factfinder would
have found the movant guilty of the offense; or (2) a new rule of
constitutional laws, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable.” 28 U.S.C.
§ 2255(h)(1) and (2).
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conviction became final.

In Bellaizac-Hurtado, the Eleventh

Circuit reversed convictions under the MDLEA on direct appeal on the
ground that Congress lacked “the power under the Offences Clause to
proscribe drug trafficking in the territorial waters of another
nation.”3

Id. at 1249.

But the holding of Bellaizac-Hurtado does

not make Petitioner’s conduct non-criminal because Petitioner
asserts that he was convicted of drug trafficking 48 miles from
Colombia, which puts him in international waters, not the territorial
waters of another nation.4

In addition, unlike Dorsainvil,

Petitioner did not seek to raise his Bellaizac-Hurtado challenge in
a § 2255 motion brought in the Middle District of Florida.
Accordingly, this Court finds that § 2255 is not an inadequate or
ineffective remedy for Petitioner’ claim and will dismiss the § 2241
Petition for lack of jurisdiction.

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The United States argued that the MDLEA, as applied to defendants
who were drug trafficking in the territorial waters of another
nation, is a constitutional exercise of the power granted to Congress
“[t]o define and punish Piracies and Felonies committed on the high
Seas, and Offences against the Law of Nations.” U.S. Const., Art.
I, §8, cl.10. See Bellaizac-Hurtado, 700 F.3d at 1248.
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Territorial waters are the coastal waters extending seaward at most
four leagues (12 nautical miles) from the baseline of a nation. See
Landaverde v. Hollingsworth, Civ. No. 12-7777 (JBS), 2013 WL 2251774,
*3 n.4 (D.N.J. May 22, 2013); see also Argentine Republic v. Amerada
Hess Shipping Corp., 488 U.S. 428, 441 n.8 (1989) (“On December 28,
1988, the President announced that the United States would henceforth
recognize a territorial sea of 12 nautical miles”).
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III. CONCLUSION
The Court dismisses the Petition for lack of jurisdiction.

An

appropriate order follows.
s/Renée Marie Bumb
RENÉE MARIE BUMB,
United States District Judge
Dated: June 27, 2013

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