Phillips v. Norward

Filing 15

OPINION. Signed by Judge Robert B. Kugler on 8/1/2014. (dmr)(n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
EDGAR SPENCER PHILLIPS,
:
:
Petitioner,
:
:
v.
:
:
J.L. NORWARD,
:
:
Respondent.
:
_________________________________________ :

Civ. No. 14-4468 (RBK)
OPINION

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

INTRODUCTION

Petitioner is a federal prisoner currently incarcerated at F.C.I. Fort Dix, in Fort Dix, New
Jersey. He pled guilty to one count of interstate domestic violence and one count of conspiracy
to distribute crack cocaine. In 1996, he was sentenced to 120 months imprisonment on the
interstate domestic violence charge to run concurrent with a 235-month sentence on the
conspiracy to distribute crack cocaine charge. Petitioner is proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the following reasons, the habeas
petition will be dismissed for lack of jurisdiction.
II.

BACKGROUND

Petitioner pled guilty to interstate domestic violence and conspiracy to distribute crack
cocaine in the United States District Court for the Northern District of West Virginia. Petitioner
did not appeal his conviction. He subsequently filed a § 2255 motion that was denied by the
Northern District of West Virginia on February 28, 2000 on procedural grounds. Petitioner then
filed other § 2255 motions that were denied by the Northern District of West Virginia on July 15,
2002 and July 17, 2002, respectively. (See N.D. W. Va. Civ. Nos. 01-0016 & 17, Dkt. Nos. 2 &
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3.) The Court found that petitioner’s § 2255 motion was time-barred, that Apprendi v. New
Jersey, 530 U.S. 466 (2000) did not apply, but that even if it did Apprendi would provide no
relief to petitioner and that counsel was not ineffective. (See N.D. W. Va. Civ. Nos. 01-0016 &
17, Dkt. No. 2.) The United States Court of Appeals for the Fourth Circuit denied a certificate of
appealability on both § 2255 motions.
In 2005, petitioner filed another § 2255 motion in the Northern District of West Virginia.
In that motion he argued that his sentence violated his Sixth Amendment rights and was illegal
because it was based on mandatory guidelines that had since been found to be unconstitutional.
See Phillips v. United States, Civ. No. 05-0086, 2007 WL 1140169, at *1 (N.D. W. Va. Apr. 13,
2007). That court dismissed the motion with prejudice after determining that it was a second or
successive § 2255 motion that lack authorization from the Fourth Circuit to be filed. See id. at
*2.
In 2014, petitioner opened this action in the Northern District of West Virginia. That
Court notified petitioner that his pleading was deficient, but gave petitioner time to correct the
deficiencies. (See Dkt. No. 3.) Petitioner then submitted his § 2241 1 habeas petition to the
Northern District of West Virginia on the proper form on May 8, 2014. (See Dkt. No. 5.)

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Section 2241 states in relevant part:
(a)

(c)

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 –
(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
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Petitioner argues in the petition that a due process error has occurred with respect to his
sentence. More specifically, petitioner asserts that he is entitled to a lesser sentence as one of the
previous convictions used to increase his criminal history category points was actually
dismissed. Thus, petitioner is challenging the sentence imposed by the Northern District of West
Virginia on his criminal convictions.
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).

(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
nations; or
(5) It is necessary to bring him into court to testify or for trial.
28 U.S.C. § 2241(a) & (c).
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IV.

DISCUSSION

Petitioner is in effect challenging the sentence he received in the Northern District of
West Virginia in this § 2241 federal habeas action. He claims that a previous conviction for
simple assault increased his criminal history points and, therefore, increased his Sentencing
Guidelines range. He asserts the simple assault charge was dismissed and should not have been
used to determine his criminal history points.
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 detention 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

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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 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
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).
The habeas petition does not allege facts which bring petitioner 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. Indeed, he makes no argument in his petition that he is factually innocent of
interstate domestic violence and conspiracy to distribute crack cocaine. Instead, petitioner’s
claim is that the Sentencing Guidelines range that the Northern District of West Virginia used
was incorrect as a previous conviction used to increase his criminal history points was
improperly relied upon. Such an argument is insufficient to fall within the Dorsainvil exception

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as it relates to an argument that petitioner is factually innocent of a sentencing enhancement as
opposed to being factually innocent of the crime for which he was convicted. 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.
Brown has not satisfied that standard here, as he makes no allegation that he is actually innocent
of the crime for which he was convicted, but instead asserts only that he is ‘innocent’ of being a
career offender.”) (internal citation omitted), cert. denied, 133 S. Ct. 201 (2012); 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 noncriminal.”); 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.”).
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. In this case, the Court does
not find it in the interests of justice to transfer this habeas petition to the Fourth Circuit as a

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request to file a second or successive § 2255 motion. The petition does not allege newly
discovered evidence that would establish by clear and convincing evidence that no reasonable
factfinder would have found him guilty of the offense for which he was convicted of in federal
court nor does not it allege a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, which was previously unavailable. See 28 U.S.C. §
2255(h). Of course, this decision to not transfer this case to the Fourth Circuit does not prevent
petitioner from seeking leave from the Fourth Circuit directly to file a second or successive §
2255 motion should he elect to do so.
V.

CONCLUSION

For the foregoing reasons, the habeas petition will be dismissed due to a lack of
jurisdiction. An appropriate order will be entered.

DATED: August 1, 2014
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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