OLIVIER-DIAZ v. HOLLINGSWORTH
Filing
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OPINION FILED. Signed by Judge Renee Marie Bumb on 11/20/13. (js)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_______________________________________
:
PEDRO A. OLIVIER-DIAZ,
:
: Civil Action No. 13-6615 (RMB)
Petitioner,
:
:
v.
:
OPINION
:
J. HOLLINGSWORTH
:
:
Respondent.
:
_______________________________________
:
This matter comes before the Court upon Petitioner’s § 2241
petition, see Docket Entry No. 1, which arrived accompanied by
his in forma pauperis application.
See Docket Entry No. 1-1.
Petitioner is a federal inmate currently confined at the FCI
Fort Dix, Fort Dix, New Jersey.
See generally, Docket.
He
stated that his current term of imprisonment resulted from the
conviction and sentence rendered by the United States District
Court for the District of Maine, see Docket Entry No. 1, at 23,
and the United States Court of Appeals for the Fourth Circuit
affirmed the same on direct appeal.
See id. at 2.
Petitioner
also stated that he sought § 2255 relief from his court of
conviction, and that application was denied.
See id.
Alleging
that he is “actually innocent” of the conduct underlying the
enhancement portion of his sentence, Petitioner now seeks § 2241
relief relying on Alleyne v. United States, 133 S. Ct. 2151
(2013)).1
See id. at 2-6.
In support of his jurisdictional
position, he maintains that § 2255 is “inadequate” to establish
his “actual innocence” as to the disputed portion of his
sentence.
See id. at 2.
Petitioner errs.
His attack on his sentence is not
cognizable in § 2241 review.
After his conviction becomes final, a federal prisoner
generally may challenge the legality of his conviction or
sentence only through a motion filed pursuant to § 2255.
See
Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002).
However, the “safety valve” clause of § 2255 allows a petitioner
to seek a writ of habeas corpus under § 2241 in the “rare case”
in which a § 2255 motion would be “inadequate or ineffective to
test the legality of his detention.”
28 U.S.C. § 2255(e); In re
Dorsainvil, 119 F.3d 245, 249-50 (3d Cir. 1997).
1
“Section 2255
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the
Supreme Court held that a fact must be submitted to a jury and
found beyond a reasonable doubt if it increases a defendant’s
statutory mandatory maximum sentence. Alleyne extended this
principle to facts that increase a defendant’s statutory
mandatory minimum sentence, namely, brandishing a firearm. The
issue of whether Alleyne is applicable on collateral review was
recently certified to the United States Court of Appeals for the
Third Circuit by the United States District Court for the Eastern
District of Pennsylvania. See United States v. Reyes, 2013 U.S.
Dist. LEXIS 112386 (E.D. Pa. Aug. 8, 2013). Thus far, at least
four district courts have found that Alleyne does not apply
retroactively to cases on collateral review. See id.; see also
United States v. Stanley, 2013 U.S. Dist. LEXIS 98943 (N.D. Okla.
July 16, 2013); United States v. Eziolisa, 2013 U.S. Dist. LEXIS
102150 (S.D. Ohio July 22, 2013); Affolter v. United States, 2013
U.S. Dist. LEXIS 104835 (E.D. Mo. July 26, 2013).
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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.”
F.3d 536, 539 (3d Cir. 2002).
Cradle v. Miner, 290
Rather, a § 2255 motion is
inadequate or ineffective “only if it can be shown that some
limitation of scope or procedure would prevent a section 2255
proceeding from affording the prisoner a full hearing and
adjudication of his claim of wrongful detention.”
United States
v. Brooks, 230 F.3d 643, 648 (3d Cir. 2000) (quoting Leguillou v.
Davis, 212 F.2d 681, 684 (3d Cir. 1954) (internal quotation marks
omitted).
A § 2255 motion is inadequate or ineffective to test the
legality of a conviction where a petitioner “is being detained
for conduct that has subsequently been rendered non-criminal by
an intervening Supreme Court decision,” and where the petitioner
is otherwise barred from filing a second or successive § 2255
petition.
In re Dorsainvil, 119 F.3d at 252.
In this case,
Petitioner’s core conduct underlying his conviction was and still
is a crime.
Since his dispute is limited solely to the sentence-
enhancement determination rendered by the District of Maine, he
cannot avail himself of the “safety valve,” and his reliance on
the recent United States Supreme Court case Alleyne v. United
States, 133 S. Ct. 2151 (2013), is misplaced.
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Alleyne is an extension of Apprendi v. New Jersey, 530
U.S. 466 . . . . Because we have held that Apprendi
claims must be brought pursuant to § 2255, not § 2241,
see Okereke, 307 F.3d at 120-21, it follows that
Alleyne claims must be brought pursuant to § 2255 as
well. Thus, the District Court [ruled correctly] in
dismissing [Petitioner’s] § 2241 petition for lack of
jurisdiction.
Jackman v. Shartle, 2013 U.S. App. LEXIS 17281, at *3-5 (3d Cir.
Aug. 20, 2013) (footnotes omitted).
Thus, the Court is obligated
to dismiss the Petition for lack of § 2241 jurisdiction.2
For the foregoing reasons, Petitioner’s in forma
pauperis application will be granted.
His Petition will be
dismissed for lack of § 2241 jurisdiction.
An appropriate Order follows.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: November 20, 2013
2
Moreover, this Court finds it not in the interests of
justice to construe the Petition as a mislabeled and improperly
filed application to the Fourth Circuit seeking leave to file a
second/successive § 2255 motion. However, no statement made in
this Opinion or the Order filed herewith prevents Petitioner from
seeking such leave from the Fourth Circuit on Petitioner’s own.
This Court expresses no opinion as to substantive or procedural
propriety or impropriety of such an application in the event
Petitioner elects to file it.
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