HARE v. HOLLINGSWORTH et al
Filing
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OPINION. Signed by Chief Judge Jerome B. Simandle on 9/21/2016. (dmr)(n.m.)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
DELFON LEBREW HARE, SR.,
HONORABLE JEROME B. SIMANDLE
Petitioner,
Civil Action
No. 15-5458 (JBS)
v.
JORDAN HOLLINGSWORTH,
OPINION
Respondent.
APPEARANCES:
Delfon Lebrew Hare, Sr., Petitioner pro se
#39733-037
FCI Fort Dix
P.O. Box 2000
Fort Dix, NJ 08640
SIMANDLE, Chief Judge:
INTRODUCTION
Delfon Lebrew Hare, Sr., a federal prisoner confined at FCI
Fort Dix, New Jersey, filed an amended petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241, as well as an
application to proceed in forma pauperis. Amended Petition,
Docket Entry 5. For the reasons expressed below, this Court will
dismiss the petition for lack of jurisdiction. The in forma
pauperis application is dismissed as moot.
BACKGROUND
Petitioner pled guilty to possession with intent to
distribute fifty grams or more of cocaine base under 21 U.S.C. §
841 in the United States District Court for the District of
Maryland. Hare v. United States, No. 10-1757, 2013 WL 5423959,
at *1 (D. Md. Sept. 26, 2013).1 The District Court imposed a
thirty-year sentence. Id. The United States Court of Appeals for
the Fourth Circuit affirmed the sentence and determined the
District Court did not err in denying Petitioner’s motion to
withdraw his guilty plea. United States v. Hare, 319 F. App'x
280, 282 (4th Cir. 2009) (per curiam).
Petitioner thereafter filed a motion to vacate, set aside,
or correct his sentence pursuant to 28 U.S.C. § 2255. Amended
Petition at 4; Hare, 2013 WL 5423959 at *1. He argued: “(1) he
was denied his statutory and Constitutional rights to a speedy
trial, (2) the government violated the notice procedures under
21 U.S.C. § 851, (3) he made an involuntary guilty plea, and (4)
he suffered from ineffective assistance of counsel.” Hare, 2013
WL 5423959 at *1. The District Court denied his motion on the
merits and denied a certificate of appealability. Id. at *8. The
Fourth Circuit upheld the District Court’s decision. United
States v. Hare, 556 F. App'x 274, 275 (4th Cir. 2014) (per
curiam).
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“[A] court may take judicial notice of a prior judicial
opinion.” McTernan v. City of York, 577 F.3d 521, 525 (3d Cir.
2009).
2
After his appeal was dismissed, Petitioner filed a motion
before the District Court under Federal Rule of Civil Procedure
60(b). Amended Petition at 7. He argued “that a writ of habeas
corpus ad prosequendum issued in his state case on June 23, 2008
constitutes newly discovered evidence that undermines” the
District Court’s order denying his § 2255 motion. United States
v. Hare, No. 07-0189, slip op. at 1-2 (D. Md. Sept. 22, 2015)
(order denying relief from judgment). The court rejected
Petitioner’s argument that the writ ad prosequendum constituted
“newly discovered evidence” as Petitioner had become aware of
the writ during the pendency of his § 2255 motion. Id. at 2.
“Having had the opportunity to bring this evidence to the
Court’s attention in a timely manner, and having failed to do
so, Petitioner will not now be permitted to attempt to present
an argument that could have been presented well before the Court
issued its judgment in this case.” Id.
Petitioner filed the instant petition before this Court
while his Rule 60(b) motion was pending before the District of
Maryland. Petition, Docket Entry 1. This Court administratively
terminated the petition on August 11, 2015, for failure to pay
the filing fee or submit an application to proceed in forma
pauperis, and for failure to use the correct § 2241 form. Docket
Entry 2. Petitioner moved to reopen his case on September 3,
2015. Docket Entry 3. This Court denied the request as
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Petitioner still had not complied with the Court’s previous
Order. Docket Entry 4. Petitioner thereafter submitted an
amended petition on the proper form, an application to proceed
in forma pauperis, and the filing fee. Amended Petition.2
Petitioner raises four grounds for relief: (1) the United
States “failed to disclose the State-issued [writ] on Record”;
(2) “The absence of the State-writ raises suspicion of
governmental culpability”; (3) “The Federal Government violated
a territorial and judicial command by the Seventh Judicial
Circuit Court for Prince George’s County, Maryland. The statewrit is a jurisdictional matter; Prisoner Hare was not returned
to the custody of state authorities, that indicates a conflict
of jurisdiction,” and; (4) “the absence of the State-writ [from
the] open record caused an actual systemic malfunction between
the intra-agencies of the DOJ. This breakdown did cause the U.S.
District Court to convict Prisoner Hare in violation of
fundamentally protected Constitutional and Statutory law.”
Amended Petition at 7-9. He asks the Court to vacate his
conviction for lack of jurisdiction. Id. at 9.
2
As the petition is being dismissed for lack of jurisdiction,
Petitioner’s request to proceed in forma pauperis is denied as
moot.
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STANDARD OF REVIEW
Petitioner brings this Petition for a Writ of Habeas Corpus
as a pro se litigant. A pro se pleading is held to less
stringent standards than more formal pleadings drafted by
lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v.
Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition and
any supporting submissions must be construed liberally and with
a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d
Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721–22 (3d
Cir. 1989); United States v. Brierley, 414 F.2d 552, 555 (3d
Cir. 1969), cert. denied, 399 U.S. 912 (1970).
A federal district court must dismiss a habeas corpus
petition if it appears from the face of the petition that the
petitioner is not entitled to relief. 28 U.S.C. § 2254 Rule 4
(made applicable through Rule 1(b)); see also McFarland v.
Scott, 512 U.S. 849, 856 (1994); Siers v. Ryan, 773 F.2d 37, 45
(3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989).
ANALYSIS
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.” Coady v. Vaughn,
251 F.3d 480, 485 (3d Cir. 2001). 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.
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2013) (per curiam) (citing Okereke v. United States, 307 F.3d
117, 120 (3d Cir. 2002)). “[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 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.” Id. 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); see also Okereke v. United States, 307 F.3d 117, 12021 (3d Cir. 2002).
Here, Petitioner asserts the District of Maryland lacked
jurisdiction over him at the time of his plea, rendering its
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subsequent judgment of conviction invalid. He candidly admits
that he is challenging the validity of his conviction, Amended
Petition at 5, but argues that he had no means of addressing the
purported lack of jurisdiction “until [the] § 2255 Judicial
Order illustrated a contradiction of the writ.” Id. at 9.
However, Petitioner did in fact present this claim to the
District of Maryland in a motion for relief from its order in
his § 2255 proceedings. Id. at 7. In rejecting Petitioner’s
argument, the District Court noted that Petitioner had had the
opportunity to amend his § 2255 motion to include this argument
but failed to do so. United States v. Hare, No. 07-0189, slip
op. at 2 (D. Md. Sept. 22, 2015) (order denying relief from
judgment).3 Section 2255 is not “inadequate or ineffective”
because the sentencing court did not grant Petitioner his
requested relief under either § 2255 or Rule 60(b). Cradle, 290
F.3d at 539. Accordingly, this Court lacks jurisdiction to
entertain this challenge to Petitioner's conviction under §
2241.
3
The District Court specifically addressed Petitioner’s
jurisdiction arguments on the merits in its opinion, stating:
“there is no question that this Court had jurisdiction over
Petitioner throughout the entirety of his criminal case,
notwithstanding that the state may have filed a writ of habeas
ad prosequendum at some point during the proceedings.” Hare, No.
07-0189, slip op. at 2 n.3.
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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. Since Petitioner has already
pursued a motion under § 2255, he must seek authorization from
the Fourth Circuit to file a second or successive petition. 28
U.S.C. § 2244(b)(3). The Court finds that it is not in the
interests of justice to transfer this habeas petition to the
Fourth Circuit as it does not appear Petitioner can satisfy the
requirements of § 2244(b)(2). However, this Court's decision to
not transfer the case does not prevent Petitioner seeking
permission from the Fourth Circuit on his own.
CONCLUSION
Based on the foregoing, this Court will dismiss the
Petition. An accompanying Order will be entered.
September 21, 2016
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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