CURRAN v. HOLLINGSWORTH

Filing 11

OPINION. Signed by Chief Judge Jerome B. Simandle on 10/13/2015. (TH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JOHN F. CURRAN, III,

HONORABLE JEROME B. SIMANDLE

Petitioner,
Civil Action
No. 15-2770 (JBS)

v.
JORDAN W. HOLLINGSWORTH,

OPINION
Respondent.

APPEARANCES:
John F. Curran, III, Petitioner Pro Se
# 54166-037
FCI Fort Dix
P.O. Box 2000
Fort Dix, New Jersey 08640
Irene E. Dowdy, Esq.
Office of the United States Attorney
401 Market Street
Fourth Floor
P.O. Box 2098
Camden, New Jersey 08101
Attorney for Respondent Jordan Hollingsworth
SIMANDLE, Chief Judge:
INTRODUCTION
John F. Curran, III, a federal prisoner confined at FCI Fort
Dix, New Jersey, filed this Petition for a Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241. (Docket Entry 1). For the reasons
expressed below, this Court will dismiss the petition for lack of
jurisdiction, and no certificate of appealability shall issue.

BACKGROUND
On December 20, 2011, Petitioner was charged with three counts
of securities fraud, 15 U.S.C. §§ 78j(b), 78ff; and four counts of
mail fraud, 18 U.S.C. § 1341 in the United States District Court
for the District of Maryland. United States v. Curran, No. 11-687
(RDB) (D. Md. Dec. 20, 2011);(Docket Entry 4-2). The indictment
alleged the scheme resulted in proceeds of at least $1,963,065.
(Docket Entry 4-2 at 7). Petitioner was arrested by the United
States Marshals Service on January 6, 2012, and released on bond
that same day. (Docket Entry 4-3 at 2). Petitioner was re-arrested
on August 14, 2012 and was in the Marshals’ custody until November
5, 2012, a period of sixty-eight (68) days. (Docket Entry 4-3 at
3).
On May 14, 2013, Petitioner signed a plea agreement in which
he agreed to plead guilty to one count of securities fraud, 15
U.S.C. §§ 78j(b) and 78ff. (Docket Entry 8-1 at 13). He also agreed
to forfeit $1,963,065, (Docket Entry 8-1 at 17), to the entry of a
restitution order up to $1,963,065, (Docket Entry 8-1 at 19), and
to the applicability of a sixteen-point enhancement under U.S.S.G.
§ 2B1.1(b)(1)(I) as the loss exceeded $1 million, (Docket Entry 8-1
at 16); (Docket Entry 8-3 at 131, l. 14 to 132 l. 2). The United
States agreed to recommend a sentence on the low end of the
guideline range. (Docket Entry 8-1 at 17).
Sentencing took place before the Honorable Richard D. Bennett,
D. Md., on August 14, 2013. (Docket Entry 8-2). During sentencing

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the United States objected to the two-point deduction for
acceptance of responsibility, U.S.S.G. § 3E1.1(a), as Petitioner
attempted to withdraw his guilty plea. (Docket Entry 8-3 at 20).
The court overruled the objection and set the advisory guideline
range at 37-46 months, the anticipated range in the plea agreement.
(Docket Entry 8-3 at 27). Pursuant to its obligation from the plea
agreement, the United States recommended a sentence of thirty-seven
months. (Docket Entry 8-3 at 61). The court accepted that
recommendation and sentenced Petitioner to thirty-seven-months
imprisonment with three years of supervised release. (Docket Entry
8-3 at 89, ll. 20-23); (Docket Entry 4-6 at 3-4).
Petitioner surrendered himself to the Bureau of Prisons
(“BOP”) at FCI Fort Dix on October 14, 2013. (Docket Entry 4-1 ¶
8). The BOP calculated his sentence as commencing on October 14,
2013, and credited him with “time spent in federal custody on
January 6, 2012, and from August 29, 2012, through November 5,
2012.” (Docket Entry 4-1 ¶ 10; Docket Entry 4-8 at 3); see also 18
U.S.C. § 3585(b)). This calculation resulted in an anticipated
release date of April 12, 2016. (Docket Entry 4-1 ¶¶ 9-10; Docket
Entry 4-8 at 2). The sentence was calculated on October 21, 2013
and audited on October 22, 2013. (Docket Entry 4-1 ¶ 11; Docket
Entry 4-10 at 2).
On August 16, 2013, Petitioner filed a notice of appeal with
the United States Court of Appeals for the Fourth Circuit. (Docket
Entry 4-17 at 2). After the United States moved to enforce

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Petitioner’s waiver of appellate rights, the Fourth Circuit
dismissed the appeal. United States v. Curran, No. 13-4608 (4th
Cir. Aug. 29, 2014), reh’g en banc denied, No. 13-4608 (4th Cir.
Sept. 26, 2014); (Docket Entry 4-18 at 6; Docket Entry 4-19 at 2).
While awaiting the Fourth Circuit’s decision on his direct
appeal, Petitioner filed a motion to vacate his conviction pursuant
to Federal Rule of Criminal Procedure 52(b) on July 4, 2014.
(Docket Entry 4-20 at 2). Petitioner asserted the Government had
failed to establish there was any economic loss or that the
securities he sold were subject to 15 U.S.C. §§ 78j(b), 78ff.
(Docket Entry 4-20 at 3-4). The court noted that as Petitioner’s
claims were a collateral attack on his sentence, he was required to
bring those claims in a Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255. United States v. Curran, No. 110687, slip. op at 2 (D. Md. Nov. 10, 2014) (unpublished); (Docket
Entry 4-21 at 3).
Petitioner filed his § 2255 motion in the District of Maryland
on December 11, 2014. (Docket Entry 4-23 at 2-8).1 Petitioner argued
that his counsel was ineffective for failing to investigate the
facts of the Government’s case, “failing to investigate, document,
and argue the issue of economic loss,” and that the restitution
order was invalid. (Docket Entry 4-24 2-22). The motion is
presently still pending in the District of Maryland. See Curran v.

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Petitioner did not include this § 2255 motion on his initial
petition for habeas corpus as required. See Docket Entry 1 ¶ 10(a).

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United States, No. 14-3932 (D. Md. filed Dec. 14, 2014); (Docket
Entry 4-16 at 16).
On January 28, 2015, Petitioner submitted a Request for
Administrative Remedy asking the BOP to perform an independent
sentence computation as “[t]he sentence enhancement is not
supported in [the Judgment and Commitment Order] as there is no
economic loss found by the district court.” (Docket Entry 4-13 at
2). Warden Hollingsworth responded on February 11, 2015 that the
thirty-seven-month sentence was verified in the Judgment and
Commitment Order, and the BOP “does not have the authority to
change your sentence without an amended Judgment and Commitment
Order.” (Docket Entry 4-13 at 3). Warden Hollingsworth further
indicated “[a]ccording to policy, an independent sentence
calculation will be conducted when a court orders specific prior
custody credit which does not comport with BOP policy. This is not
the issue in your case.” (Docket Entry 4-13 at 3).
Petitioner appealed to the Northeast Regional Director on
February 13, 2015. (Docket Entry 4-13 at 4). The Regional Director
denied the appeal on March 24, 2015, stating: “A review of your
appeal reveals you are essentially challenging the legality of your
federal sentence. . . . You have not presented any credible
evidence indicating your conviction is invalid or illegal. The
Bureau of Prisons is responsible for executing the federal sentence
imposed by the Court.” (Docket Entry 4-13 at 6). Petitioner

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appealed to the Central Office on April 1, 2015. (Docket Entry 4-13
at 7).
While both his § 2255 motion and administrative appeal were
still pending,2 Petitioner filed the instant Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241 in this Court on April
20, 2015. (Docket Entry 1). The petition asserted that the BOP
failed to adhere to its program statement requiring an independent
audit of prisoners’ sentences, and that had the BOP conducted its
audit, it would have determined that it could not “legally
administer the full sentence ordered against the Petitioner” as the
District Court found there was “zero dollars of economic loss.”
(Docket Entry 1 at 8). Petitioner argued the BOP could only
administer six out of the thirty-seven months. (Docket Entry 1 at
8). Petitioner seeks his immediate release and a resentencing by
the sentencing court. (Docket 1 at 10).
By Order dated May 6, 2015, the Court ordered Respondent to
submit an answer within forty-five (45) days. (Docket Entry 2).
Petitioner thereafter filed a motion for emergent injunctive relief
requesting this Court prevent the BOP from transferring him from
Fort Dix during the pendency of the § 2241 petition. (Docket Entry
3). Respondent filed opposition to the motion simultaneously with
its answer to the petition. (Docket Entries 4 and 5). The Court

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The Central Office denied Petitioner’s administrative appeal on
May 7, 2015. (Docket Entry 4-13 at 8).

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denied the motion for emergent injunctive relief on June 23, 2015.
(Docket Entry 7).
DISCUSSION
Respondent argues Petitioner is not entitled to relief from
this Court as he failed to exhaust his administrative remedies
before filing his habeas petition. It further asserts that this
Court lacks jurisdiction over the petition as Petitioner’s claims
may only be brought in a motion pursuant to § 2255. As exhaustion
is not a jurisdictional requirement, see Coady v. Vaughn, 251 F.3d
480, 488 (3d Cir. 2001), the Court must first consider whether the
petition is properly before this Court.
A. Jurisdiction
Section 2241 “confers habeas jurisdiction to hear the petition
of a federal prisoner who is challenging not the validity but the
execution of his sentence.” Id. at 485. 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, 88-89 (3d Cir.
2013) (per curiam) (citing Okereke v. United States, 307 F.3d 117,
120 (3d Cir. 2002)).
Ordinarily, this Court would have jurisdiction pursuant to 28
U.S.C. §§ 1331 and 2241 to consider a claim that the BOP has
miscalculated a sentence. See Blood v. Bledsoe, 648 F.3d 203, 206
(3d Cir. 2011), cert. denied, 132 S. Ct. 1068 (2012); Vega v.
United States, 493 F.3d 310, 313 (3d Cir. 2007); Woodall v. Fed.
Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005). This petition

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at its core, however, challenges the validity of the sentence
imposed by the District of Maryland, not the BOP’s calculation. See
Jarbough v. Attorney Gen. of U.S., 483 F.3d 184, 189 (3d Cir. 2007)
(noting courts “are not bound by the label attached by a party to
characterize a claim and will look beyond the label to analyze the
substance of a claim. To do otherwise would elevate form over
substance and would put a premium on artful labeling. Accordingly,
artful labeling will not confer us with jurisdiction.” (internal
citation omitted)).
There are several indications that Petitioner’s § 2241
petition is actually a “disguised” § 2255 motion. For instance, in
order for this Court to conclude that the BOP “could not legally
administer the sentence enhancement as the JINC did not meet the
statutory requirements under 2B1.1,” (Docket Entry 1 at 8), the
Court would first have to determine that the thirty-seven-month
sentence imposed by the District of Maryland was an invalid
sentence. This is not a determination that can be made in a § 2241
petition.3 Furthermore, Petitioner explicitly states in his
supplemental response brief that he “is challenging the legality of

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Although the Court does not reach the merits of Petitioner’s
claim, it notes that Petitioner agreed to the sixteen-point
enhancement under U.S.S.G. 2B1.1(I) as part of his plea agreement,
which the Fourth Circuit found to be knowing and voluntary. See
United States v. Curran, No. 13-4608 (4th Cir. Aug. 29, 2014),
reh’g en banc denied, No. 13-4608 (4th Cir. Sept. 26, 2014);
(Docket Entry 4-19 at 2); see also Docket Entry 8-1 at 16, para.
6(b).

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detention and not the BOP’s ability to alter, amend, or re-sentence
the Petitioner.” (Docket Entry 9 at 2).
Most significantly, Petitioner does not ask the Court to order
the BOP to recalculate his sentence. Instead, “[t]he relief sought
is [the] immediate release of the Petitioner as the legal component
of the composite sentence has been completed (6 months) and the
case remanded back to the District Court for re-sentencing.”
(Docket Entry 1 at 9) (emphasis added). In other words, Petitioner
is asking this Court to correct, vacate, or set aside his federal
sentence.

The Court cannot do this under § 2241, and Petitioner

must bring this claim in a § 2255 motion.
“[Section] 2255 expressly prohibits a district court from
considering a challenge to a prisoner's federal sentence under §
2241 unless the remedy under § 2255 is ‘inadequate or ineffective
to test the legality of his detention.’” Snyder v. Dix, 588 F.
App’x 205, 206 (3d Cir. 2015) (quoting 28 U.S.C. § 2255(e)); see
also In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997). “A § 2255
motion is inadequate or ineffective 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). Section 2255 is
not an inadequate or ineffective method for Petitioner to make his
claim, indeed he is pursuing a § 2255 motion simultaneously with

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this petition. Curran v. United States, No. 14-3932 (D. Md. filed
Dec. 14, 2014); (Docket Entry 4-16 at 16).
As Petitioner is challenging the validity of his sentence and
not the manner in which it is being carried out, Petitioner’s
claims must be brought in his one, all-inclusive motion under §
2255 in the sentencing court, namely, the District of Maryland.
Accordingly, this Court lacks jurisdiction to entertain this
challenge to Petitioner's sentence under § 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. In this case, the Court does not find it in the
interests of justice to transfer this habeas petition to the
District of Maryland as Petitioner already has a pending § 2255
motion in that court.
As Petitioner has not made “a substantial showing of the
denial of a constitutional right” under 28 U.S.C. § 2253(c)(2),
this Court will deny a certificate of appealability. See Miller–El
v. Cockrell, 537 U.S. 322, 327 (2003).
B. Exhaustion of Administrative Remedies
Respondent argues the petition is barred as Petitioner failed
to exhaust his administrative remedies before filing this action.
As the Court lacks jurisdiction over the petition, the Court makes

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no findings as to whether Petitioner exhausted his administrative
remedies.
CONCLUSION
Based on the foregoing, this Court will dismiss the Petition,
and a certificate of appealability shall not issue. An accompanying
Order will be entered.

October 13, 2015
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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