SAVAGE v. HOLLINGSWORTH

Filing 4

OPINION FILED. Signed by Judge Robert B. Kugler on 2/19/15. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
DARYL SAVAGE,
:
:
Petitioner,
:
Civ. No. 15-0436 (RBK)
:
v.
:
OPINION
:
WARDEN J. HOLLINGSWORTH,
:
:
Respondent.
:
_________________________________________ :
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 is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. §
2241. On January 28, 2015, this Court administratively terminated this case as petitioner had
neither paid the filing fee nor submitted an application to proceed in forma pauperis.
Subsequently, petitioner paid the filing fee. Therefore, the Clerk will be ordered to reopen this
case. For the following reasons, the habeas petition will be dismissed for lack of jurisdiction.
II.

BACKGROUND

On September 29, 2004, a jury convicted Savage of one count of
possession of a firearm by a convicted felon and one count of
ammunition by a convicted felon in violation of 18 U.S.C. §
922(g)(1) (2000). Following his conviction, the Court sentenced
Savage to concurrent terms of 180 months for the firearm and
ammunition charges.
On January 3, 2006, the Fourth Circuit affirmed Savage’s
convictions and sentence. United States v. Savage, 161 F. App’x
256 (4th Cir. 2006). Savage’s petition for certiorari was denied.
Savage v. United States, 126 S. Ct. 1930 (2006).

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(Dkt. No. 1 at p. 7-8.) 1 Subsequently, petitioner filed a motion to vacate, set aside or correct his
sentence pursuant to 28 U.S.C. § 2255 in the District of Maryland. Among the claims that
petitioner raised in that motion was a claim that he was erroneously classified as a career
criminal which in turn enhanced his sentence. The District of Maryland denied the § 2255
motion on September 6, 2007. The United States Court of Appeals for the Fourth Circuit denied
a certificate of appealability on April 3, 2008. See United States v. Savage, 272 F. App’x 244
(4th Cir. 2008).
In 2009, petitioner moved in this Court for habeas relief pursuant to 28 U.S.C. § 2241.
This Court dismissed that habeas petition for lack of jurisdiction as petitioner failed to show any
grounds in which § 2255 would be an inadequate or ineffective remedy to address his challenges.
See Savage v. Zickefoose, No. 09-6418, 2010 WL 4366129, at *2 (D.N.J. Oct. 28, 2010). The
United States Court of Appeals for the Third Circuit affirmed this dismissal on September 30,
2011. See Savage v. Zickefoose, 446 F. App’x 524 (3d Cir. 2011) (per curiam).
In 2013, petitioner moved in the District of Maryland under Federal Rule of Civil
Procedure 60(b)(6) to set aside his judgment because the charges in one of his Armed Career
Criminal Act predicate convictions allegedly had been nol-prossed. The District of Maryland
determined that this Rule 60(b) motion was actually a second or successive § 2255 motion. As
petitioner had failed to obtain certification from the Fourth Circuit to file a second or successive
§ 2255 motion, the District of Maryland denied the Rule 60(b) motion. The Fourth Circuit
denied a certificate of appealability and dismissed the appeal on September 30, 2014. See United
States v. Savage, 584 F. App’x 75 (4th Cir. 2014).

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This procedural background is taken from the United States District Court for the District of
Maryland’s September 6, 2007 Opinion that analyzed petitioner’s § 2255 motion.
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Petitioner then filed the instant § 2241 habeas petition in this case in January 2015.
Petitioner argues that the District of Maryland erred in denying his § 2255 motion because he
lacked the requisite elements for his sentence to be enhanced under the Armed Career Criminal
Act. He claims that this claim was “overlooked” by the District of Maryland. He requests that
this Court vacate his 180 month sentence.
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 seeks to have this Court review his sentence entered by the District of
Maryland in this § 2241 action. Indeed, as previously noted, he seeks to have his sentence
vacated because he was allegedly improperly determined to be a career offender which enhanced
his sentence. Generally, a challenge to the validity of a federal conviction or sentence must be

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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
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

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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. He
does not allege that he had no earlier opportunity to challenge his conviction for a crime that an
intervening change in substantive law may negate. Instead, his claim is that the District of
Maryland improperly used a prior conviction that had been nol-prossed to enhance his sentence.
Such a claim does not fall within the Dorsainvil exception. See, e.g., 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), 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

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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.”).
Accordingly, petitioner fails to show that § 2255 is inadequate or ineffective to warrant
bringing this § 2241 action in this Court. 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 is in the interest of justice to transfer this habeas
petition to the Fourth Circuit as a request to file a second or successive § 2255 motion. As noted
previously, petitioner’s claim appears to be that the District of Maryland erred in denying his
Rule 60(b) motion which sought to raise his claim that he received an improperly enhanced
sentence due to relying on his prior offenses. Petitioner appealed that denial to the Fourth
Circuit which denied a certificate of appealability. Thus, it appears that the Fourth Circuit has
already had occasion to consider this issue. Therefore, it is not in the interest of justice to
transfer this action to the Fourth Circuit.
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: February 19, 2015
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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