ASHE v. ORTIZ

Filing 5

OPINION. Signed by Judge Noel L. Hillman on 10/27/2017. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
:
:
Petitioner,
:
:
v.
:
:
WARDEN DAVID ORTIZ,
:
:
Respondent.
:
______________________________:
KENNETH ASHE,

Civ. No. 16-4348 (NLH)
OPINION

APPEARANCES:
Kenneth Ashe
#27977-058
c/o Jean Carter
3667 Skyland Drive
Sylva, NC 28779
Petitioner Pro se

HILLMAN, District Judge
Petitioner Kenneth Ashe, a prisoner confined at the Federal
Correctional Institution (“FCI”) in Fort Dix, New Jersey at the
time of filing, submitted a writ of habeas corpus under 28
U.S.C. § 2241.

(ECF No. 1.)

Because he failed to submit the

filing fee or an in forma pauperis application, the Court
initially administratively terminated this matter.
3.)

(ECF Nos. 2,

Petitioner thereafter submit the filing fee.
At this time, the Court will review the Petition pursuant

to Rule 4 of the Rules Governing Section 2254 Cases, (amended
Dec. 1, 2004), made applicable to § 2241 petitions through Rule

1(b) of the Habeas Rules.

See also 28 U.S.C. § 2243.

For the

reasons set forth below, the Petition will be dismissed.
I.

BACKGROUND
On December 11, 2012, Petitioner and several others were

arrested for their participation in a narcotics-trafficking
operation led by Petitioner's nephew.
Action No. 12–33 (W.D.N.C. 2012).)

(U.S. v. Ashe, Crim.
On March 19, 2013,

Petitioner pleaded guilty pursuant to a written plea agreement
to one count of conspiracy to possess with intent to distribute
crack cocaine.

(Id.)

months of imprisonment.

The court sentenced Petitioner to 87
(Id.)

On September 9, 2014, the Fourth

Circuit affirmed Petitioner's conviction.

See United States v.

Ashe, 583 F. App'x 155, 155 (4th Cir. 2014).

Petitioner

thereafter filed a § 2255 petition, alleging claims of
ineffective assistance of counsel, which was denied by the
sentencing court.

Ashe v. United States, No. 12-33, 2015 WL

5430847 (W.D.N.C. Sept. 15, 2015).

The Fourth Circuit declined

to issue a certificate of appealability.

Ashe v. United States,

634 F. App'x 397 (4th Cir. 2016).
Petitioner then filed the instant § 2241 Petition.
No. 1.)

(ECF

He relies on “United States v. Baptiste” and claims

that his attorneys: did not file certain evidence in his appeal;
did not raise certain claims in his appeal; tampered with
evidence; and refused to withdraw from his case.
2

(Id.)

II.
A.

DISCUSSION
Legal Standard
United States Code Title 28, Section 2243, provides in

relevant part as follows:
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.
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 must be construed liberally. See
Hunterson v. DiSabato, 308 F.3d 236, 243 (3d Cir. 2002).
Nevertheless, a federal district court can dismiss a habeas
corpus petition if it appears from the face of the petition that
the petitioner is not entitled to relief.

See Denny v. Schultz,

708 F.3d 140, 148 n. 3 (3d Cir. 2013); see also 28 U.S.C. §§
2243, 2255.
B. Analysis
As noted by the Court of Appeals for the Third Circuit in
In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997), a motion to
vacate, set aside, or correct sentence under 28 U.S.C. § 2255
has been the “usual avenue” for federal prisoners seeking to
challenge the legality of their confinement.
3

See also Okereke

v. United States, 307 F.3d 117, 120 (3d Cir. 2002); United
States v. McKeithan, 437 F. App’x 148, 150 (3d Cir. 2011);
United States v. Walker, 980 F. Supp. 144, 145–46 (E.D. Pa.
1997) (challenges to a sentence as imposed should be brought
under § 2255, while challenges to the manner in which a sentence
is executed should be brought under § 2241).
Section 2255, however, contains a safety valve where “it
appears that the remedy by motion is inadequate or ineffective
to test the legality of [Petitioner's] detention.”
U.S.C. § 2255(e).

See 28

In Dorsainvil, the Third Circuit held that

the remedy provided by § 2255 is “inadequate or ineffective,”
permitting resort to § 2241 (a statute without timeliness or
successive petition limitations), 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.”
Dorsainvil, 119 F.3d at 251.
The court emphasized, however, that its holding was not
intended to suggest that § 2255 would be considered “inadequate
or ineffective” merely because a petitioner is unable to meet
the stringent limitations or gatekeeping requirements of § 2255.
Id.

To the contrary, the court was persuaded that § 2255 was

“inadequate or ineffective” in the unusual circumstances
presented in Dorsainvil because it would have been a complete
4

miscarriage of justice to confine a prisoner for conduct that,
based upon an intervening interpretation of the statute of
conviction by the United States Supreme Court, may not have been
criminal conduct at all.

Id. at 251-52.

The Court of Appeals for the Third Circuit subsequently
emphasized the narrowness of its Dorsainvil holding when it
rejected a district court's conclusion that § 2255 was
“inadequate or ineffective” to address a claim based on Apprendi
v. New Jersey, 530 U.S. 466, 490 (2000), an intervening decision
which held that, “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.”

See Okereke, 307 F.3d at

120-21 (in which the petitioner had been sentenced based upon a
drug quantity determined at sentencing by a judge using the
preponderance of evidence standard).

The mere fact that a claim

is time barred does not render § 2255 an inadequate or
ineffective remedy.

See Cradle v. United States, 290 F.3d 536,

539 (3d Cir. 2002).
Here, Petitioner’s claims do not fall into the Dorsainvil
exception.

Specifically, 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,

he is simply re-raising the ineffective assistance of counsel
5

claims which were already considered and rejected by the
sentencing court in his § 2255 petition.

However, this does not

bring his Petition within the Dorsainvil exception because
“[s]ection 2255 is not inadequate or ineffective merely because
the sentencing court does not grant relief . . . .”

See Cradle,

290 F.3d at 539; Drabovskiy v. Warden of FCI Allenwood, 595 F.
App’x 96 (3d Cir. 2014) (per curiam) (same); see also Hazel v.
Smith, 142 F. App'x 131, 132 (3d Cir. 2005) (per curiam)
(“claims of ineffective assistance of counsel ... place his
petition squarely within the scope of § 2255”) (citations
omitted); Sedlak v. United States, No. 12–0285, 2012 WL 832984,
at *3 (M.D. Pa. Feb. 14, 2012) (“Section 2241 is not available
for [a federal prisoner's] ineffective assistance of counsel
claim, as he has not demonstrated that Section 2255 is an
inadequate or ineffective remedy”) (quoting Piggee v. Bledsoe,
412 F. App'x 443, 446 (3d Cir. 2011) (per curiam)) (other
citations omitted).
Based on the foregoing, the Court finds that it lacks
jurisdiction under § 2241 over the instant habeas petition.
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 will not
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transfer the Petition to the Fourth Circuit for its
consideration as a request to file a second or successive § 2255
motion because that court has already previously rejected the
ineffective assistance of counsel claims presented in this
Petition. 1

Accordingly, the Petition will be dismissed for lack

of jurisdiction.
III. CONCLUSION
For the foregoing reasons, the Court will dismiss the
Amended Petition for lack of jurisdiction.

An appropriate order

follows.

Dated: October 27, 2017
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

1

The Court’s decision not to transfer the instant Petition does
not preclude Petitioner from filing a request with the Fourth
Circuit on his own.
7