NAVAR v. HOLLINGSWORTH

Filing 5

OPINION. Signed by Judge Robert B. Kugler on 11/7/2013. (dmr)(n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
ARMANDO NAVAR,
:
:
Petitioner,
:
:
v.
:
:
JORDAN HOLLINGSWORTH, Warden,
:
:
Respondent.
:
_________________________________________ :

Civ. No. 13-4978 (RBK)
OPINION

ROBERT B. KUGLER, U.S.D.J.
I.

INTRODUCTION

Petitioner is a federal prisoner currently incarcerated at the Federal Correctional
Institution in Fort Dix, New Jersey. On August 19, 2013, the Court received petitioner’s a pro se
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. On August 29, 2013, the Court
denied petitioner’s application to proceed in forma pauperis because his prison account
statement indicated that he had over $200.00. Accordingly, the matter was administratively
terminated, but petitioner was given thirty days to pay the applicable $5.00 filing fee. (See Dkt.
No. 3.) Thereafter, petitioner submitted another pro se petition for writ of habeas corpus and
paid the $5.00 filing fee. (See Dkt. No. 4.) Accordingly, the Clerk will be ordered to reopen this
case. For the following reasons, the petition will be dismissed due to a lack of jurisdiction.
II.

BACKGROUND

In 2006, petitioner received a sentence of 324 months imprisonment after a jury found
him guilty of conspiracy to distribute cocaine, distribution of over five kilograms of cocaine and
use of a communication facility during a felony in the United States District Court for the
Northern District of Illinois. (See Dkt. No. 4-1 at p. 15-16.) The United States Court of Appeals
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for the Seventh Circuit affirmed the judgment and conviction on March 3, 2009. See United
States v. Recendiz, 557 F.3d 511 (7th Cir. 2009). 1
Thereafter, in August, 2010, petitioner filed a motion to vacate, set aside or correct his
sentence pursuant to 28 U.S.C. § 2255 in the Northern District of Illinois. See Navar v. United
States, No. 10-4874, 2011 WL 3584779, at *2 (N.D. Ill. Aug. 10, 2011). Petitioner raised
ineffective assistance of trial and appellate counsel claims in that motion that were denied. On
March 1, 2012, the Seventh Circuit denied a certificate of appealability on petitioner’s § 2255
motion. (See N.D. Ill. No. 10-4874, Dkt. No. 22.)
Petitioner then filed an application to file a second or successive § 2255 motion with the
Seventh Circuit. In that motion, petitioner argued that counsel neglected to inform him about
plea negotiations with the government. He relied on Lafler v. Cooper, - U.S. -, 132 S. Ct. 1376
(2012) and Missouri v. Frye, - U.S. -, 132 S. Ct. 1399 (2012) to support his arguments. On April
1, 2013, the Seventh Circuit denied the motion to file a second or successive § 2255 concluding
that neither Lafler nor Frye announced a new constitutional rule. (See Dkt. No. 4-1 at p. 4.)
Petitioner has now filed this § 2241 petition in this Court. He argues that he was not
provided effective assistance of counsel during the plea bargaining process. More specifically,
petitioner states that, “counsel was ineffective for failing to obtain the status of plea discussions
from previous counsel[,] for failing to discuss the sentencing range with Mr. Navar and for
failing to obtain the plea information from the prosecuting attorney.” (Dkt. No. 4 at p. 20.) He
states that he received a sentence substantially greater at trial than he would have otherwise
received had he been provided effective assistance of counsel and pled. In support of his
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The Court takes judicial notice of the judicial opinions from petitioner’s direct appeal and his
subsequent habeas petition. See McPherson v. United States, 392 F. App’x 938, 940 (3d Cir.
2010) (taking judicial notice of the official record of prior court proceedings); McTernan v. City
of York, Pa., 577 F.3d 521, 526 (3d Cir. 2009) (“[A] court may take judicial notice of a prior
judicial opinion.”).
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petition, he argues that the United States Supreme Court decisions in Lafler and Frye stated a
new constitutional rule that entitle him to relief.
III.

STANDARD FOR SUA SPONTE DISMISSAL

With respect to screening the instant petition, 28 U.S.C. § 2243 provides in relevant part:
A court, justice or judge entertaining an application for a 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 thereto.
As petitioner is proceeding pro se, his petition is held to less stringent standards than those
pleadings drafted by lawyers. See Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010) (“It is the
policy of the courts to give a liberal construction to pro se habeas petitions.”) (internal quotation
marks and citation omitted); United States v. Otero, 502 F.3d 331, 334 (3d Cir. 2007) (“we
construe pro se pleadings liberally.”) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)).
Nevertheless, “a district court is authorized to dismiss a [habeas] petition summarily when it
plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is
not entitled to relief in the district court[.]” Lonchar v. Thomas, 517 U.S. 314, 320 (1996).
IV.

DISCUSSION

Petitioner argues that he is entitled to bring this § 2241 petition in this Court as § 2255 is
inadequate or ineffective to test the legality of his detention. Petitioner asserts that Lafler and
Frye, which were decided after his previous § 2255 motion was denied in the Northern District
of Illinois, created new constitutional rights that are applicable to his case.
Generally, a challenge to the validity of a federal conviction or sentence must be brought
under 28 U.S.C. § 2255. See Jackman v. Shartle, No. 13-2500, 2013 WL 4419333, at *1 (3d Cir.
Aug. 20, 2013) (per curiam) (citing Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002)).

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This is generally true because § 2255 prohibits a district court from entertaining a challenge to a
prisoner’s federal sentence through § 2241 unless the remedy under § 2255 is “inadequate or
ineffective.” See 28 U.S.C. § 2255(e). Indeed, § 2255(e) states that:
[a]n application for a writ of habeas corpus 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 a court has denied him relief, unless it also
appears that the remedy by the motion is inadequate or ineffective
to test the legality of his detention.
28 U.S.C. § 2255(e). A § 2255 motion is “inadequate or ineffective,” which permits a petitioner
to resort to a § 2241 petition, “only where the petitioner demonstrates that some limitation or
procedure would prevent a § 2255 proceeding from affording him a full hearing and adjudication
of his wrongful [sentence] claim.” Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir.
2002) (citations omitted). However, “[s]ection 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 . . . § 2255.”
Cradle, 290 F.3d at 539 (emphasis added and citations omitted). “It is the inefficacy of the
remedy, not the personal inability to use it, that is determinative.” Id. at 538 (citation omitted).
“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 (citing In re Dorsainvil, 119
F.3d 245, 251-52 (3d Cir. 1997)).
In Dorsainvil, the Third Circuit held that the remedy provided by § 2255 is “inadequate
or ineffective,” permitting resort to § 2241, 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. Nevertheless, the

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Third Circuit emphasized that its holding was not suggesting that a § 2255 motion was
“inadequate or ineffective” merely because a petitioner is unable to meet the strict gatekeeping
requirements of section 2255. See id. The “safety valve,” as stated in Dorsainvil, is a narrow
one and has been held to apply in situations where the prisoner has had no prior opportunity to
challenge his conviction for a crime later deemed to be non-criminal by an intervening change in
the law. See Okereke, 307 F.3d at 120 (citing Dorsainvil, 119 F.3d at 251).
Petitioner does not allege facts which bring him within the Dorsainvil exception.
Indeed, petitioner takes issue with the pretrial plea negotiations and states that he would have
plead guilty in exchange for a lesser sentence, not that he was actually innocent of his crimes for
which he was charged. (See Dkt. No. 4 at p. 16.) Thus, the Dorsainvil exception does not apply
to petitioner’s case.
Nevertheless, petitioner also cites to the United States Supreme Court decisions in Lafler
and Frye and claims that they “created a new rule with respect to pleas and their importance in
the adversarial process.” Section 2255(h)(2) permits a petitioner to seek authorization from the
appropriate Court of Appeals if it contains “a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court that was previously unavailable.”
At the outset, this District Court is not the proper forum for which petitioner should seek
leave to file a second or successive § 2255 motion. Indeed, as noted in Part II, supra, petitioner
previously unsuccessfully sought leave from the Seventh Circuit to file a second or successive §
2255 motion based on Lafler and Frye.
In Lafler, the defendant went to trial rather than accept a plea deal as a result of
ineffective assistance of counsel during the plea negotiation process. See 132 S. Ct. at 1386.
The defendant received a sentence significantly more severe at trial than he likely have received

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by pleading guilty. See id. Ultimately, the Supreme Court held that the proper remedy to cure
the ineffective assistance of counsel was to order the prosecution to reoffer the plea agreement
and allow the state trial court to “exercise its discretion in determining whether to vacate the
convictions and resentence respondent pursuant to the plea agreement, to vacate only some of the
convictions and resentence respondent accordingly, or to leave the convictions and sentence
from trial undisturbed.” Id. at 1391.
In Frye, the United States Supreme Court held that “defense counsel has a duty to
communicate formal offers from the prosecution to accept a plea on terms and conditions that
may be acceptable to the accused.” 132 S. Ct. at 1408. Where defense counsel fails to
communicate these formal offers to the defendant, it constitutes deficient performance. See id. at
1409. With respect to a showing of prejudice, the Supreme Court stated that:
[t]o show prejudice from ineffective assistance of counsel where a
plea offer has lapsed or been rejected because of counsel’s
deficient performance, defendants must demonstrate a reasonable
probability they would have accepted the earlier plea offer had
they been afforded effective assistance of counsel. Defendants
must also demonstrate a reasonable probability the plea would
have been entered without the prosecution cancelling it or the trial
court refusing to accept it, if they had the authority to exercise that
discretion under state law.
Id.
“Although the Court of Appeals for the Third Circuit has yet to address the issue whether
Lafler and Frye recognized a new right, other courts of appeals . . . have held that neither case
(1) created new rights that are (2) retroactively applicable to cases on collateral review.” Sayles
v. United States, No. 12-1644, 2013 WL 4523593, at *4 (W.D. Pa. Aug. 27, 2013) (citing
Williams v. United States, 705 F.3d 293, 294 (8th Cir. 2013); In re King, 697 F.3d 1189, 1189
(5th Cir. 2012); Buenrostro v. United States, 697 F.3d 1137, 1140 (9th Cir. 2012); United States

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v. Lawson, No. 12-3240, 2012 WL 6604576, at *3 (10th Cir. 2012); In re Perez, 682 F.3d 930,
933 (11th Cir. 2012); United States v. Denson, Crim. No. 08-CR-0365, 2013 WL 588509, at *1
(W.D. Pa. Feb. 11, 2013)); see also Hare v. United States, 688 F.3d 878, 879 (7th Cir. 2012).
This District has also held that Lafler and Frye do not announce a new constitutional rule that is
retroactively applicable on collateral review. See Olivera v. Warden Fort Dix Prison, No. 123064, 2013 WL 1144783, at *4 (D.N.J. Mar. 18, 2013). In petitioner’s own case, the Seventh
Circuit has similarly held when it denied petitioner’s motion to bring a second or successive §
2255 motion based on Lafler and Frye. Accordingly, for the reasons stated above, petitioner
fails to show that he is entitled to relief on his § 2241 petition as this Court lacks jurisdiction.
Accord Olivera, 2013 WL 1144783, at *3-4 (finding that petitioner bringing § 2241 petition
failed to allege facts within Dorsainvil exception where he did not allege actual innocence but
took issue with pretrial plea negotiations).
Whenever a civil action is filed in a court that lacks jurisdiction, “the court shall, if it is in
the interests 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 is
not in the interest of justice to transfer this action to the Seventh Circuit as a request to file a
second or successive § 2255 motion. Lafler and Frye did not create a new rule of constitutional
law and petitioner already had his motion to file a second or successive § 2555 motion that relied
on Lafler and Frye denied by the Seventh Circuit.

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V.

CONCLUSION

For the foregoing reasons, the habeas petition will be summarily dismissed for lack of
jurisdiction. An appropriate order will be entered.

DATED: November 7, 2013
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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