FUENTES v. KIRBY
Filing
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OPINION FILED. Signed by Judge Robert B. Kugler on 8/24/16. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
JOSE FUENTES,
:
:
Petitioner,
:
Civ. No. 16-1163 (RBK)
:
v.
:
:
WARDEN MARK A. KIRBY,
:
OPINION
:
Respondent.
:
_________________________________________ :
ROBERT B. KUGLER, U.S.D.J.
I.
INTRODUCTION
Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241. Petitioner argues in his habeas petition that he is factually innocent
of a sentencing enhancement because the government did not show that had three previous
felonies to classify him as an armed career criminal. For the following reasons, the habeas
petition will be summarily dismissed.
II.
BACKGROUND
After pleading guilty in the United States District Court for the Eastern District of
Virginia in 2003, petitioner was sentenced to 195 months imprisonment for conspiracy to possess
with intent to distribute cocaine hydrochloride and possession of a firearm by a convicted felon.
He was sentenced as an armed career criminal. Petitioner filed a motion to vacate, set aside or
correct his sentence pursuant to 28 U.S.C. § 2255 which was denied by the Eastern District of
Virginia in 2005. The United States Court of Appeals for the Fourth Circuit denied a certificate
of appealability on that § 2255 motion on November 29, 2005. See United States v. Fuentes, 155
F. App’x 687 (4th Cir. 2005).
In March, 2016, petitioner filed the instant habeas petition in this Court pursuant to 28
U.S.C. § 2241. He claims that he is factually innocent of being considered an armed career
criminal such that he was improperly sentenced.
In June, 2016, petitioner was granted authorization from the Fourth Circuit to file a
second or successive § 2255 motion because he had made a prima facie showing that the new
rule of constitutional law announced in Johnson v. United States, 135 S. Ct. 2551 (2015) may
apply to his case. (See E.D. Va. Crim. No. 03-0114 Dkt. No. 84) Petitioner is now proceeding
with another § 2255 motion in the Eastern District of Virginia pursuant to this authorization from
the Fourth Circuit. On July 29, 2016, the Eastern District of Virginia ordered the government to
respond to petitioner’s § 2255 motion filed in that court. In that action, petitioner argues that he
was improperly sentenced as an armed career criminal pursuant to the United States Supreme
Court decision in Johnson.
III.
STANDARD FOR SUA SPONTE SCREENING OF HABEAS PETITION
With respect to screening the instant habeas 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, 92 S .Ct. 594,
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30 L.Ed.2d 652 (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 the criminal judgment and sentence entered by
the Eastern District of Virginia in this § 2241 habeas petition. 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
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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
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 to 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 claims center around the
purported impropriety of his sentence, not the crimes for which he was convicted. See Scott v.
Shartle, 574 F. App'x 152, 155 (3d Cir. 2014) (per curiam) (“[B]ecause [petitioner] is
challenging his career offender designation and is not claiming that he is now innocent of the
predicate offense, he does not fall within the ‘safety valve’ exception created in In re Dorsainvil
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and cannot proceed under § 2241.”) (citation omitted); McIntosh v. Shartle, 526 F. App'x 150,
152 (3d Cir. 2013) (per curiam) (“Here, McIntosh is challenging his designation as a career
offender. Thus, he does not fall within the exception created in Dorsainvil and may not proceed
under § 2241.”) (citation omitted); Johnson v. Scism, 454 F. App'x 87, 88 (3d Cir. 2012) (per
curiam) (same); 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.”); Arnold v. Hollingsworth, No. 16-0993, 2016 WL
3647323, at *2 (D.N.J. July 7, 2016) (“[C]hallenges to career offender status may not be made
under § 2241.”) Therefore, § 2241 is not the proper avenue for petitioner to pursue his claims.
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, this Court will
not transfer this action to another court. Indeed, as described above, petitioner is proceeding with
another § 2255 motion in the Eastern District of Virginia after receiving authorization from the
Fourth Circuit that is challenging his armed career criminal status pursuant to the Supreme
Court’s decision in Johnson.
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V.
CONCLUSION
For the foregoing reasons, the habeas petition will be summarily dismissed due to a lack
of jurisdiction. An appropriate order will be entered.
DATED: August 24, 2016
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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