REDD v. UNITED STATES OF AMERICA

Filing 5

OPINION FILED. Signed by Judge Noel L. Hillman on 10/26/17. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
:
:
Petitioner,
:
:
v.
:
:
WARDEN MARK KIRBY,
:
:
Respondent.
:
______________________________:
DERRICK VINCENT REDD,

Civ. No. 16-4985 (NLH)
OPINION

APPEARANCES:
Derrick Vincent Redd
49502-083
Fairton
Federal Correctional Institution
P.O. Box 420
Fairton, NJ 08320
Petitioner Pro se

HILLMAN, District Judge
Petitioner Derrick Vincent Redd, a prisoner confined at the
Federal Correctional Institution (“FCI”) in Fairton, New Jersey,
filed a writ of habeas corpus under 28 U.S.C. § 2241.
1.)

(ECF No.

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
Petitioner provides the following procedural history in his

Petition:
In 1997, the petitioner was charged in a
seven-count indictment with offenses related
to the armed robberies of three banks and the
attempted robbery of a fourth.
He pleaded
guilty to two counts of the indictment (counts
3 and 4) and was convicted of the remaining
counts following a jury trial (Counts 1, 2, 5,
6, and 7).
The Petitioner was sentenced on
August 22, 1997 for Counts 3 and 4, and on
December 12, 1997 for Counts 1, 2, 5, 6, and
7.
The convictions were affirmed on direct
appeal. United States v. Redd, 161 F.3d 793
(4th Cir 1998).
The Petitioner has repeatedly sought to
collaterally
attack
his
convictions
and
sentence. In 2001, he filed a motion to vacate
pursuant to 28 U.S.C. § 2255. The Court denied
the petition. The Petitioner then appealed to
the Fourth Circuit, which found no reversible
error
and
denied
a
certificate
of
appealability
and
dismissed
the
appeal.
United States v. Redd, No. 01-6152 (April 18,
2001).
In 2003, the Petitioner filed a motion in the
Fourth Circuit seeking permission to file a
successive application for collateral relief,
this time under 28 U.S.C. § 2244. In re: Redd,
No. 03-264.
The Fourth Circuit denied the
Petitioner's motion. Id. (October 14, 2003).
In 2006, the Petitioner filed a petition for
a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 in the Northern District of West
Virginia. Redd v. Haynes, Case No. 5:06cv113.
The Petitioner subsequently moved to withdraw
his petition, which the District Court
granted. Id.

2

In 2007, the Petitioner again filed a petition
for a writ of habeas corpus pursuant to 28
U.S.C. § 2241 in the Northern District of West
Virginia, which the District Court dismissed.
Redd v. Driver, Case No. 5:07cv168 (November
5, 2008).
The Fourth Circuit dismissed the
Petitioner's appeal of this matter for his
failure to prosecute. Redd v. Driver, No. 088472 (February 5, 2009).
In 2007, the Petitioner filed two motions in
the Fourth Circuit seeking permission to file
successive applications for relief under 28
U.S.C. §2244.
The Fourth Circuit dismissed
the Petitioner's first motion and denied the
second. In re: Redd, No. 07-100 (January 16,
2007); In re: Redd, No. 07-212(July 19, 2007).
The petitioner subsequently filed a writ of
mandamus, which the Honorable Leonie M.
Brinkema dismissed as a successive § 2255
petition.
Redd v. United States, Case No.
1:09cv1301 (February 16, 2010).
The Fourth
Circuit denied authorization for Redd to file
a successive §2255 petition and dismissed his
appeal.
United States v. Redd, No 10-6586
(August 3, 2010).
The Petitioner then filed a common law writ of
habeas corpus. The Court dismissed the writ
as a successive § 2255 petition. The Fourth
Circuit denied a certificate of appealability
and dismissed the appeal.
United States v.
Redd, No. 12-7216 (September 14, 2012).
The Petitioner also filed two timely second
and successive § 2255 petition[s] relating to
United States v. Johnson, and [were] denied
June 2016 and July 2016.
(Pet. 1-4.)
In his Petition, Petitioner argues that he is “innocent of
statute 18 U.S.C. §924(c)'s residual clause §924(c)(3)(B), in
light of [Johnson v. United States, 135 S. Ct. 2551, 192 L. Ed.
3

2d 569 (2015)].”

(Pet. 5.)

More specifically, he states that

“[s]ince a bank robbery under § 2113(a)(d) categorically fails
to qualify as a ‘crime of violence’ under 924(c)'s force clause,
then leaving only the residual clause[,] this Court [should]
apply Johnson and a rule that §924(c) residual clause is
unconstitutionally vague, which would leave no legal basis for
Petitioner's §924(c) conviction to stand, and that he is
actually innocent of the statute.”

(Pet. 25.)

Petitioner

argues that § 2255 is inadequate or ineffective to challenge his
conviction because the Fourth Circuit erroneously denied him
permission to file a second or successive § 2255 petition on
these grounds.
II.
A.

(Id.)

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
4

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.

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
5

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 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
6

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.

He does not allege that he is “being detained for

conduct that has subsequently been rendered non-criminal by an
intervening Supreme Court decision…[and] he is otherwise barred
from challenging the legality of the conviction under § 2255.”
See Bruce v. Warden Lewisburg USP, 868 F.3d 170, 180 (3d Cir.
2017).

Petitioner relies on Johnson as the basis for his § 2241

Petition, but Johnson invalidated the residual clause of the
Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B).
135 S. Ct. at 2563.

Johnson,

In contrast, the conduct for which

Petitioner was detained, i.e. bank robbery [18 U.S.C. § 2113]
and use of a firearm during the bank robbery [18 U.S.C. §
924(c)], remains criminal post-Johnson and he therefore cannot
meet the Dorsainvil exception.

Id.

Moreover, the fact that the Fourth Circuit denied
Petitioner permission to file a second or successive petition
pursuant to Johnson because “Petitioner’s bank robbery offenses
7

are crimes of violence under 18 U.S.C. § 924(c)(3)(A),” does not
render § 2255 inadequate or ineffective.

See Cradle, 290 F.3d

at 539; Sukhu v. United States, No. 15-2386, 2017 WL 4151232, at
*3 (M.D. Pa. Sept. 19, 2017).
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

transfer the Petition to the Fourth Circuit for its
consideration as a request to file a second or successive § 2255
motion because the court has already previously denied that
request by Petitioner. 1
III. CONCLUSION
For the foregoing reasons, the Petition will be summarily
dismissed due to a lack of jurisdiction.

An appropriate order

follows.

Dated: October 26, 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.
8