LANDAVERDE v. HOLLINGSWORTH

Filing 8

OPINION. Signed by Chief Judge Jerome B. Simandle on 5/21/2013. (dmr)(n.m.)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PABLO RECINOS LANDAVERDE,
Petitioner,
v.
JORDAN R. HOLLINGSWORTH,
Respondent.

:
:
:
:
:
:
:
:
:
:
:

Hon. Jerome B. Simandle
Civil No. 12-7777 (JBS)

OPINION

APPEARANCES:
Pablo Recinos Landaverde, #51445-018
FCI Fort Dix
P.O. 2000
Fort Dix, NJ 08640
Petitioner Pro Se
PAUL J. FISHMAN
United States Attorney
By: David Bober
Assistant U.S. Attorney
United States Attorney’s Office
402 East State Street, Room 430
Trenton, NJ 08608
Attorneys for Respondent
SIMANDLE, Chief Judge:
Pablo Recinos Landaverde, 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, after he pled
guilty to conspiracy to possess with intent to distribute five or
more kilograms of cocaine while on board a vessel subject to the

jurisdiction of the United States, in violation of the Maritime
Drug Law Enforcement Act, 46 U.S.C. §§ 70503(a)(1), 70506(a), and
70506(b), and 21 U.S.C. § 960(b)(1)(B)(ii).
Landaverde, Criminal No. 09-0582 (M.D. Fla.).

See United States v.
Respondent filed

an Answer and the declaration of David Bober, together with
exhibits.

Petitioner filed a Reply.

Having thoroughly reviewed

the record, this Court will dismiss the Petition for lack of
jurisdiction.
I.

BACKGROUND

Pursuant to a guilty plea entered on March 23, 2010,
Petitioner was convicted in the U.S. District Court for the
Middle District of Florida of 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 21 U.S.C. § 960(b)(1)(B)(ii) and 46 U.S.C. §§
70503(a), 70506(a) and (b), provisions of the Maritime Drug Law
Enforcement Act (“MDLEA”).
No. 09-0582 (M.D. Fla.).

United States v. Landaverde, Criminal
The district judge accepted

Petitioner’s guilty plea on April 7, 2010 and on June 24, 2010,
Petitioner was sentenced to 168 months of imprisonment.

See id.

Petitioner is now incarcerated at FCI Fort Dix in New Jersey
and signed his § 2241 Petition on December 18, 2012.

He brings

this case stating two grounds for relief: “New 11th Circuit law,
no jurisdiction to arrest and detained” and “Illegal

2

incarceration -- no jurisdiction for the Court to impose a prison
sentence.”

(Petition, docket entry no. 1, page 6 of 8.)

In a memorandum accompanying the Petition, he 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.”

(Petition, docket entry

no. 1, memorandum at pg. 1.)
Petitioner states in his memorandum that in January of 2010
he was seized by the United States Coast guard 140 miles off the
coast of Colombia.
pg. 3.)

(Petition, docket entry no. 1, memorandum at

Respondents assert in their response that, on or about

December 10, 2009, the Coast Guard located Petitioner’s boat in
international waters approximately 150-200 miles from the coast
of Colombia at geo-coordinates 11.42 North, 78.18 West.
(Response, docket entry no. 5, page 4.)

Upon boarding the

vessel, the Coast Guard found approximately 675 kilograms of
cocaine in a concealed compartment.

(See id., page 5.)

Respondents further state that in his plea agreement, Petitioner
admitted to the geo-coordinates of the location of his boat when
stopped by the Coast Guard, confirming that the location was in
“international waters.”

(See id.)

3

Respondents argue that Bellaizac-Hurtado does not apply here
because the vessel on which Petitioner was apprehended was
stopped in international waters.

Respondents assert that this

Court should dismiss the Petition for lack of jurisdiction.
Response, docket entry no. 5.)

(See

Petitioner filed a Reply further

stating that the United States had no jurisdiction to arrest,
extradite or prosecute him and thus his incarceration and
sentence are illegal under Bellaizac-Hurtado.

(Reply, docket

entry 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).

Nevertheless, 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).

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.”

4

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); Application of
Galante, 437 F.2d 1164 (3d Cir. 1971) (per curiam); United States
ex rel. Leguillou v. Davis, 212 F.2d 681, 684 (3d Cir. 1954).
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. 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

1

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).
5

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 after the Third Circuit ruled 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 (the circuit wherein he was convicted)
deemed non-criminal in United States v. Bellaizac-Hurtado, 700
F.3d 1245 (11th Cir. 2012) (after his conviction became final and
the time to file a § 2255 motion expired).

In Bellaizac-Hurtado,

the Eleventh Circuit reversed convictions under the Maritime Drug

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).
6

Law Enforcement Act 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.
In this case, Respondent correctly contends that the holding
of Bellaizac-Hurtado does not make Petitioner’s conduct noncriminal because Petitioner was convicted of drug trafficking in
international waters, not in the territorial waters of another
nation.4
The vessel on which Petitioner was apprehended was 140 miles
off the coast of Colombia, in international waters lying beyond

3

The United States argued that the Maritime Drug Law
Enforcement Act, 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.
4

The United States recognizes a territorial sea of 12
nautical miles. See 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”); 1982 United
Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833
U.N.T.S. 3, art. 3 (entered into force Nov. 16, 1994)
(Territorial waters are the coastal waters extending seaward at
most for four leagues or twelve nautical miles from the baseline
of a nation, and the high seas is the entire body of waters
stretching seaward of the nation’s territorial waters).
In the Petition, Petitioner asserts that his vessel was 140
miles from the coast of Colombia, which puts the vessel in
international waters. (Petition, docket entry no. 1, memorandum
at pg. 3.)
7

the recognized 12 mile territorial limit.

Thus, this is not a

case where subsequent jurisprudence has rendered defendant’s
conduct non-criminal under United States law.

In addition,

unlike Dorsainvil, Petitioner did not raise or attempt to raise
his Bellaizac-Hurtado challenge in a § 2255 motion in the Middle
District of Florida.

Accordingly, this Court finds that § 2255

is not an inadequate or ineffective remedy for Petitioner’s claim
and will dismiss the Petition for lack of jurisdiction.
For all the foregoing reasons, the Petition will be
dismissed for lack of jurisdiction.

See Castillo v.

Hollingsworth, Civil No. 12-7831, 2013 WL 1288196 (D.N.J. March
26, 2013) (collecting cases).
III.

CONCLUSION

The Court dismisses the Petition for lack of jurisdiction.

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief Judge
Dated:

May 21

, 2013

8