BODNAR v. HOLLINGSWORTH

Filing 2

OPINION. Signed by Judge Renee Marie Bumb on 4/21/2015. (tf,n.m. )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Anthony Bodnar,
Petitioner,
v.
Jordon Hollingsworth, Warden
FCI Fort Dix,
Respondent.

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Civil Action No. 15-2013(RMB)

OPINION

BUMB, District Judge
This matter comes before the Court upon Petitioner’s
submission of a petition under 28 U.S.C. § 2241, which was
accompanied by the $5.00 filing fee. See ECF No. 1 (“Petition”).
The Court must review the petition and dismiss the petition if
“it plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief in the district
court.” See Rule 4 of the Rules Governing Section 2254 Cases in
the United States District Courts, applicable to cases filed
under 28 U.S.C. § 2241 pursuant to Rule 1 of the Rules Governing
Section 2254 Cases in the United States District Courts.
Petitioner is a federal inmate confined at the Federal
Correctional Institution in Fairton, New Jersey, imprisoned

after pleading guilty to receipt and possession of child
pornography in the U.S. District Court for the Eastern District
of Virginia on November 9, 2009. (Pet. ¶¶ 1, 6); Judgment, U.S.
v. Bodnar, 09cr163 (E.D. Va. Feb. 10, 2010). Petitioner was
sentenced to 168 months imprisonment on counts 1 and 2, with
five years supervised release; and 120 months imprisonment
concurrently, on counts 3, 4, and 5, with five years supervised
release.

Sentence, U.S. v. Bodnar, 09cr163 (E.D. Va. Feb. 10,

2010). Petitioner did not file a direct appeal. (Pet., ¶ 7.)
Petitioner then filed a motion under 28 U.S.C. § 2255 in January
2011, and the motion was denied on April 6, 2012. Order, U.S. v.
Bodnar, 09cr163 (E.D. Va. April 6, 2012).
In the Petition at bar, Petitioner asserts that the
“Magistrate judge presided over Plea Colloquy in violation of
Federal Magistrates Act, 28 U.S.C. § 636(b)(3) ‘additional
duties’ clause.” (Pet., ¶ 6.) Petitioner asserted he did not
appeal on this issue because he did not understand his rights or
the judicial system. (Id. ¶7(b)). Petitioner contended he could
bring his claim under 28 U.S.C. § 2241 because § 2255 is an
inadequate or ineffective remedy. (Id. at ¶ 10(c)). Petitioner
would not qualify for a second or successive petition because he
did not have new evidence and was not relying on a new ruling by
the Supreme Court. (Id.)

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Petitioner’s attack on his sentence is not cognizable under
§ 2241.

A federal prisoner may challenge the legality of his

conviction or sentence, once the conviction is final, only
through a motion filed pursuant to 28 U.S.C. § 2255.

Okereke v.

U.S., 307 F.3d 117, 120 (3d Cir. 2002). 28 U.S.C. § 2255
contains a savings clause, but it is a rare case when the
savings clause applies because a § 2255 motion is inadequate or
ineffective to test the legality of a petitioner’s conviction.
28 U.S.C. § 2255(e); Massey v. U.S., 581 F.3d 172, 174, n.1 (3d
Cir. 2009)(appropriate use of the § 2255 savings clause is
rare).
The fact that a petitioner unsuccessfully pursued a § 2255
motion in the sentencing court, and now faces a statutory bar to
filing another one, does not show the inadequacy of that remedy.
McCullough v. U.S., 501 F. App’x 115, at *117 (3d Cir. Oct. 17,
2012)(per curiam).

The § 2255 safety valve is extremely narrow,

available under circumstances where a petitioner had no prior
opportunity to challenge his conviction for a crime later deemed
to be non-criminal by an intervening change in law.

Id. (citing

Okereke, 307 F.3d at 120 (citing In re Dorsainvil, 119 F.3d at
251). The argument Petitioner now seeks to raise was available
to him when he filed his first § 2255 motion. Petitioner’s claim
may not now be raised under § 2241 merely because he failed to

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raise the issue in his first § 2255 motion. Therefore, this
Court will dismiss the petition.

Dated: April_21, 2015
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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