GREEN v. HOLLINGSWORTH

Filing 3

OPINION FILED. Signed by Judge Noel L. Hillman on 1/12/15. (js)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

TERRY LEE GREEN,
Petitioner,
v.
JORDAN HOLLINGSWORTH, Warden
Respondent.

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Civil Action No. 13-7045(NLH)

OPINION

APPEARANCES:
Terry Lee Green, #95821-071
Federal Correctional Institution
P.O. Box 2000
Fort Dix, NJ 08640
Petitioner Pro Se

HILLMAN, District Judge:
This matter is presently before the Court on a Petition for
a Writ of Habeas Corpus (“Petition”) filed by Petitioner Terry
Lee Green (“Petitioner”) pursuant to 28 U.S.C. § 2241,
challenging his 32-year sentence imposed by the U.S. District
Court for the District of South Carolina under 18 U.S.C. §§
924(c)(1)(A)(ii) and 924(c)(1)(C)(i).

For the reasons stated

below, the Court will dismiss the Petition for lack of
jurisdiction. 1
I.

BACKGROUND

In the Petition, the Petitioner does not explicitly provide
the details of his conviction or sentence, other than that it
was imposed by the U.S. District Court for the District of South
Carolina, Florence Division; that the length of the sentence was
for 32 years; and that the date of judgment of conviction was in
July of 2000.

However, based on the information provided, the

Court was able to deduce that the criminal case in question was
U.S. v. Green, No. 99-cr-558, in the U.S. District Court for the
District of South Carolina (“Criminal Docket”).

All facts

recited by the Court here originate from that docket. 2
In 1999, Petitioner was indicted for 27 counts of various
offenses related to a series of armed robberies.

(Criminal

Docket, Docket Sheet; see also Criminal Docket, Dkt. 2, 16, 17.)

1

Petitioner also filed a motion to expand record along with
the Petition. (Dkt. 2.) Because the Court is dismissing the
Petition, the Petitioner’s motion is dismissed as moot.
2

Because part of Petitioner’s criminal docket in the U.S.
District Court for the District of South Carolina is sealed, the
Court relies solely on what is available publicly for
disposition of the Petition. As such, the Court recites only
relevant facts from that docket that are not sealed. Fed. R.
Evid. 201(b)(2) (“The court may judicially notice a fact that is
not subject to reasonable dispute because it . . . can be
accurately and readily determined from sources whose accuracy
cannot reasonably be questioned”); see U.S. v. Grape, 549 F.3d
591, 604 n. 11 (3d Cir. 2008).
2

A plea agreement was reached on January 4, 2000, in which
Petitioner pled guilty to two counts under 18 U.S.C.
924(c)(1)(A)(ii), knowingly using and carrying a firearm during
and in relation to a crime of violence.

(Criminal Docket, Dkt.

23.)

(Criminal Docket,

All other charges were dismissed.

Docket Sheet.)

Pursuant to 18 U.S.C. § 924(c)(1)(A)(ii),

Petitioner was sentenced to 7 years of imprisonment for the
first count, and pursuant to 18 U.S.C. § 924(c)(1)(C)(i), which
dealt with a second or subsequent conviction under the same
subsection, the Petitioner was sentenced to 25 years of
imprisonment, with the two sentences to run consecutively for an
aggregate total of 32 years.

(Criminal Docket, Dkt. 28; see

also Criminal Docket, Dkt. 69, p 1.)
Over the years, Petitioner filed multiple motions under, or
construed as under, 28 U.S.C. § 2255, which were all denied.
(See Criminal Docket, Dkt. 56, 81; see also Criminal Docket,
Dkt. 65, p. 1 (“On November 3, 2003, Petitioner . . . filed a
‘Motion Under 18 U.S.C. § 3742 [for] Review of Sentence Imposed
in Violation of Law.’

The court construed this motion as a

successive motion for relief under 28 U.S.C. § 2255 and denied
Petitioner’s motion”).)

Now, having been relocated to Fort Dix,

Petitioner files the instant Petition, claiming that his
sentence under 18 U.S.C. § 924(e) should be negated by
intervening changes in law in the Fourth Circuit.
3

(Dkt. 1, pp.

1, 8.)

Specifically, he claims that these intervening changes

in law render him “actually innocent of being an armed career
offender.”

Id. at p. 6.

II.

DISCUSSION

A. Jurisdiction
Section 2241 of Title 28 of the United States Code provides
in relevant part:
(c) 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).
Generally, a challenge to the validity of a federal
conviction or sentence must be brought under 28 U.S.C. § 2255.
See Davis v. U.S., 417 U.S. 333 (1974); Okereke v. U.S., 307
F.3d 117, 120 (3d Cir. 2002).

Specifically, 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 under § 2255 is “inadequate or ineffective.”

See 28

U.S.C. § 2255(e); see also 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).
A § 2255 motion is inadequate or ineffective, authorizing
resort to § 2241, “only where the petitioner demonstrates that

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some limitation of scope or procedure would prevent a § 2255
proceeding from affording him a full hearing and adjudication of
his wrongful detention claim.”

Cradle, 290 F. 3d at 538.

“It

is the inefficacy of the remedy, not the personal inability to
use it, that is determinative.”

Id.

The provision exists to

ensure that petitioners have a fair opportunity to seek
collateral relief, not to enable them to evade the statute of
limitations under § 2255 or the successive petition bar.

Id. at

539.
In Dorsainvil, the Circuit Court laid out one such instance
where § 2255 would be ineffective and a § 2241 petition would be
appropriate.

The Circuit Court held that if a petitioner has

already sought remedy under § 2255 and is therefore barred from
filing a second or successive § 2255 motion, but “[a] Supreme
Court decision interpreting a criminal statute that resulted in
the imprisonment of one whose conduct was not prohibited by
law[, it] presents exceptional circumstances where the need for
the remedy afforded by the writ of habeas corpus is apparent.”
Dorsainvil, 119 F.3d at 250.

In other words, Dorsainvil raised

“the ‘unusual position’ of a prisoner with no prior opportunity
to challenge his conviction for a crime that an intervening
change in substantive law could negate with retroactive
application.”

Okereke, 307 F.3d at 120.

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Here, Petitioner is raising a Dorsainvil-like claim.
Petitioner claims that the intervening changes in law announced
by the Fourth Circuit in U.S. v. Simmons, 649 F.3d 237 (4th Cir.
2011) and Miller v. U.S., No. 13-6254 (4th Cir. Aug. 21, 2013)
negate his sentence under 28 U.S.C. § 924(e).

Both Simmons and

Miller dealt with, among other things, whether certain North
Carolina state offenses qualify as felony offenses for the
purpose of federal criminal statutes.
249-50; Miller, slip op at 11-15.

See Simmons, 649 F.3d at

Because Petitioner had a

prior conviction in North Carolina for possession of marijuana,
(Dkt. 1, p. 11), he argues that the prior conviction should not
have enhanced his sentence under § 924(e) in light of Simmons
and Miller.

However, even if the Court assumes that

Petitioner’s assertion is true, that Simmons and Miller would
negate or reduce certain sentences under 28 U.S.C. § 924(e), 3 the
Court fails to see how this applies to Petitioner’s sentence.
Petitioner was sentenced under 18 U.S.C. §§
924(c)(1)(A)(ii) and 924(c)(1)(C)(i), which relate to the
possession and use of firearms during and in relation to a crime

3

28 U.S.C. § 924(e) is actually a sentence-enhancing
statute, relating to offenses convicted under 28 U.S.C. §
922(g), a felony possession of firearms statute. Section 924(e)
is a “three strikes” statute that enhances the sentence of any §
922(g) conviction if the convicted has had three or more
previous violent felony or serious drug offenses. 28 U.S.C. §
924(e)(1).
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of violence or drug trafficking crime for which a person could
have been prosecuted.

18 U.S.C. § 924(c)(1)(A).

Essentially,

although Petitioner’s plea agreement did not include a guilty
plea for any actual robbery charges, Petitioner nevertheless
pled guilty to the use of firearms during acts he committed
which could have been prosecuted as robbery offenses.

Based on

the record, Petitioner’s sentence has no relation to any felony
possession of firearms conviction under § 922(g), nor was it
enhanced in any way by § 924(e), or related to any of his
previous convictions.

As such, the holdings of Simmons and

Miller have no effect on Petitioner’s sentence, and therefore
Petitioner fails to raise a valid Dorsainvil claim.
Accordingly, because Petitioner cannot establish that § 2255
remedies would be “inadequate or ineffective,” the Court lacks
jurisdiction to adjudicate his Petition.

III.

CONCLUSION

For the reasons set forth above, the Petition will be
dismissed for lack of jurisdiction.

At Camden, New Jersey

Dated:

s/ Noel L. Hillman
Noel L. Hillman
United States District Judge

January 12, 2015
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