SIMMONS v. ORTIZ
OPINION. Signed by Judge Robert B. Kugler on 11/9/2016. (dmr)(n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 16-5876 (RBK)
ROBERT B. KUGLER, U.S.D.J.
Petitioner is a federal prisoner currently incarcerated at F.C.I. Fort Dix in Fort Dix, New
Jersey. He is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. §
2241. Previously, this matter was administratively terminated as petitioner did not submit an
application to proceed in forma pauperis nor did he pay the $5.00 filing fee. Petitioner has now
paid the $5.00 filing fee such that the Clerk will be ordered to reopen this case. For the reasons
that follow, the habeas petition will be summarily dismissed.
Petitioner is currently serving a sentence of 105 months imprisonment after he pled guilty
to access device fraud in violation of 18 U.S.C. § 1029 in November, 2009 in the United States
District Court for the Eastern District of New York. See Simmons v. United States, No. 12-4693,
2014 WL 4628700, at *1 (E.D.N.Y. Sept. 15, 2014). The United States Court of Appeals for the
Second Circuit affirmed the judgment in 2011. See United States v. Simmons, 441 F. App’x 810
(2d Cir. 2011).
In 2012, petitioner filed a motion to set aside, correct or vacate his sentence pursuant to
28 U.S.C. § 2255 in the Eastern District of New York. (See E.D.N.Y. Civ. No. 12-4693) The
Eastern District of New York denied that motion on the merits on February 4, 2013. (See id. Dkt.
No. 14) The Second Circuit denied a certificate of appealability on August 12, 2013. (See id.
Dkt. No. 17) Petitioner then filed a motion pursuant to Federal Rule of Civil Procedure 60(b) in
his § 2255 action in the Eastern District of New York in 2014 that was also denied. See Simmons,
2014 WL 4628700.
In September, 2016, petitioner filed the instant habeas petition pursuant to § 2241 in this
Court. Petitioner argues that his initial arraignment on May 1, 2009 without a valid warrant
requires dismissal of the warrant. Additionally, petitioner claims that his rights under the Speedy
Trial Act were violated. He requests his immediate release from incarceration based on these
violations or to have this Court dismiss the indictment against him.
STANDARD FOR SUA SPONTE DISMISSAL
With respect to screening the instant habeas petition, 28 U.S.C. § 2243 provides in
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,
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).
Petitioner is seeking to have this Court review the judgment of conviction and sentence
entered by the Eastern District of New York arising from petitioner’s federal criminal
proceedings. 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)
(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
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.
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. Thus, this Court lacks jurisdiction to consider
the instant habeas petition as the petition does not fall within the Dorsainvil exception to allow
this § 2241 habeas petition to move forward in this Court.
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. This Court finds that it is not in the
interest of justice to transfer this petition to the Second Circuit at this time. Petitioner may seek
permission directly from the Second Circuit to file a second or successive § 2255 should he elect
to do so.
For the foregoing reasons, the habeas petition will be summarily dismissed due to a lack
of jurisdiction. An appropriate order will be entered.
DATED: November 9, 2016
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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