AMLEE v. UNITED STATES OF AMERICA et al
OPINION. Signed by Judge Robert B. Kugler on 2/26/2014. (nz, )n.m.
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA, et al.
Civ. No. 13-7525 (RBK)
ROBERT B. KUGLER, U.S.D.J.
Petitioner is a federal prisoner incarcerated at F.C.I. Fort Dix in Fort Dix, New Jersey.
Petitioner is currently serving a sentence of sixty-three months imprisonment after he pled guilty
in the United States District Court for the Western District of Texas to one count of stealing
United States property, one count of shipping and transporting ammunition by a prohibited
person and one count of interstate transportation of stolen goods. Petitioner’s sixty-three month
sentence imposed by the Western District of Texas was ordered to run consecutively to another
sentence imposed on petitioner by the United States District Court for the Middle District of
Petitioner is proceeding with a pro se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241. 1 Petitioner’s application to proceed in forma pauperis will be granted based on
Section 2241 states in relevant part:
Writs of habeas corpus may be granted by the Supreme Court, any
justice thereof, the district courts and any circuit judge within their
respective jurisdictions . . .
The writ of habeas corpus shall not extend to a prisoner unless –
the information provided therein. For the following reasons, the habeas petition will be
dismissed due to a lack of jurisdiction.
The Western District of Texas set forth the procedural history of petitioner’s conviction
at issue in this federal habeas petition as follows:
On June 15, 2006, Petitioner was indicted for stealing eight
firearms which were the property of the United States, from the
Fort Davis National Historical Site Museum (the Museum) in
violation of 18 U.S.C. § 641, shipping one box of ammunition
from Texas to North Carolina in violation of 18 U.S.C. § 922; and
transporting in interstate commerce the eight stolen firearms in
violation of 18 U.S.C. § 2314. On July 18, 2006, Petitioner signed
his guilty plea agreement. On July 18, 2006, Petitioner entered his
guilty plea. On May 21, 2008, Petitioner was sentenced.
(W.D. Tex. Crim. No. 06-0172, Dkt. No. 124 at p. 1. (internal citations omitted).) 2 Petitioner
appealed the judgment and sentence to the United States Court of Appeals for the Fifth Circuit.
(1) He is in custody under or by color of the authority of the United
States or is committed for trial before some court thereof; or
(2) He is in custody for an act done or omitted in pursuance of an
Act of Congress, or an order, process, judgment or decree of a
court or judge of the United States; or
(3) He is in custody in violation of the Constitution or laws or
treaties of the United States; or
(4) He being a citizen of a foreign state and domiciled therein is in
custody for an act done or omitted under any alleged right, title,
authority, privilege, protection, or exemption claimed under the
commission, order or sanction of any foreign state, or under color
thereof, the validity and effect of which depend upon the law of
(5) It is necessary to bring him into court to testify or for trial.
28 U.S.C. § 2241(a) & (c).
The Court takes judicial notice of the prior opinions in petitioner’s federal criminal proceedings
and subsequent federal habeas proceedings. See McPherson v. United States, 392 F. App’x 938,
940 n.1 (3d Cir. 2010) (taking judicial notice of the official record of prior court proceedings).
The Fifth Circuit affirmed the judgment and sentence on February 3, 2009. See United States v.
Amlee, 308 F. App’x 862 (5th Cir. 2009) (per curiam).
On August 25, 2009, petitioner filed a motion to vacate, set aside or correct his sentence
pursuant to 28 U.S.C. § 2255 in the Western District of Texas. (See W.D. Tex. Crim. No. 060172, Dkt. No. 64.) Petitioner raised claims of ineffective assistance of counsel, due process
violations, Miranda violations, and sentencing enhancement issues amongst other claims. On
March 24, 2011, the Western District of Texas denied petitioner’s § 2255 motion on the merits
and denied a certificate of appealability. (See W.D. Tex. Crim. No. 06-0172, Dkt. No. 124.) On
March 7, 2012, the Fifth Circuit denied a certificate of appealability on petitioner’s appeal of the
denial of his § 2255 motion. (See W.D. Tex. Crim. No. 06-0172, Dkt. No. 131.)
Subsequently, petitioner applied to the Fifth Circuit to file a second or successive § 2255
motion. Ultimately, the Fifth Circuit denied petitioner’s application to file a second or
successive § 2255 motion by explaining that:
Amlee has not shown that his claims are based on either newly
discovered evidence showing that no reasonable factfinder would
have found him guilty of the offense or a previously unavailable
rule of constitutional law that the Supreme Court has made
retroactive to cases on collateral review. See [28 U.S.C.] §
2255(h); 28 U.S.C. § 2244(b)(3)(C). He likewise has not shown
that a constitutional violation has probably resulted in the
conviction of one who is actually innocent, see Schhlup v. Delo,
513 U.S. 298, 327 91995), or that he was not legally eligible for
the sentence he received. See Smith v. Collins, 977 F.2d 951, 959
(5th Cir. 1992).
(W.D. Tex. Crim. No. 06-172, Dkt. No. 138 at p. 2.)
In December, 2013, this Court received the instant § 2241 habeas petition. Petitioner
raises a plethora of claims related to his criminal conviction in the Western District of Texas. He
raises claims of ineffective assistance of counsel, prosecutorial misconduct, Miranda violations
and that he is factually innocent of sentencing enhancements amongst other claims.
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).
Petitioner is challenging the criminal conviction and sentence he received in the Western
District of Texas in this § 2241 federal habeas action. 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,
535 F. App’x 87, 88 (3d Cir. 2013) (per curiam) (citing Okereke v. United States, 307 F.3d 117,
120 (3d Cir. 2002)). 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 (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
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
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 § 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.
Petitioner does not allege in the instant habeas petition that he had no earlier opportunity to
challenge his conviction for a crime that an intervening change in substantive law may negate.
Accordingly, he has not shown that Section 2255 is inadequate or ineffective to test the legality
of his federal incarceration. Accord United States v. Brown, 456 F. App’x 79, 81 (3d Cir. 2012)
(per curiam) (“We have held that § 2255’s ‘safety valve’ applies only in rare circumstances, such
as when an intervening change in the statute under which the petitioner was convicted renders
the petitioner’s conduct non-criminal.”). Furthermore, to the extent the habeas petition includes
a claim that petitioner is factually innocent of a sentencing enhancement, such a claim does not
satisfy the Dorsainvil exception. See Selby v. Scism, 453 F. App’x 266, 268 (3d Cir. 2011) (per
curiam) (“Selby does not argue that he is innocent of the offense for which he was convicted; he
argues that he is “innocent” of a sentencing enhancement because of an intervening change in
law. Accordingly, the exception described in In re Dorsainvil does not apply.”); Robinson v.
Hollingsworth, No. 13-0101, 2013 WL 141441, at *2 (D.N.J. Jan. 11, 2013) (“Section 2255 is
not inadequate or ineffective for Robinson’s challenge to his sentencing enhancement as a career
offender, however, because he does not contend that, as a result of a Supreme Court decision
issued subsequent to his § 2255 motion, the conduct for which he was convicted - possession
with intent to distribute cocaine, is not non-criminal.”); Crawford v. United States, No. 12-1545,
2012 WL 5199167, at *5 (D.N.J. Oct. 19, 2012) (“The safety valve under § 2255 does not apply
when an inmate challenges the enhancement of his sentence as Petitioner does here.”).
Therefore, this Court lacks jurisdiction to consider the instant habeas petition filed under 28
U.S.C. § 2241.
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. Petitioner has already
raised claims attacking his criminal conviction from the Western District of Texas on direct
appeal, in a § 2255 motion and in a motion to file a second or successive § 2255 motion. The
Fifth Circuit affirmed the judgment of conviction on direct appeal, the Western District of Texas
denied petitioner’s § 2255 motion on the merits, the Fifth Circuit declined to grant a certificate of
appealability and the Fifth Circuit denied petitioner’s request to file a second or successive §
2255 motion. Based on these circumstances, this Court finds that it is not in the interest of justice
to transfer this petition to the United States Court of Appeals for the Fifth Circuit as another
request for leave to file a second or successive § 2255 motion.
For the foregoing reasons, the habeas petition will be dismissed due to a lack of
jurisdiction. An appropriate order will be entered.
DATED: February 26, 2014
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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